Petition — H. M. Trimble & Sons, Ltd. v. Kingsley & Keith (Canada) Ltd.

eS ee Uilicé- supreme Coart, US, F

FILED

+R. 1 4 | SUN 94 1983

| ALEXANDER L STEVAS,

| CLERK

No.

in the Supreme Court of the

United States

Term

H.M. TRIMBLE & SONS, LIMITED,

Petitioner

Vs.

KINGSLEY AND KEITH (Canada) LIMITED

and KINGSLEY AND KEITH CHEMICAL COR-

PORATION,

Plaintiffs/ Respondents

MERCER INTERNATIONAL CORPORATION

and INTERSTATE CHEMICAL CORPORATION,

Defendants/ Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

P, RAYMOND BARTHOLOMEW,

CUSICK, MADDEN, JOYCE AND

McKay

Attorneys for Petitioner

First Federal Building

Sharon, Pennsylvania 16146

Telephone: (412) 981-2000

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—{717) 888-2244

“ Questions Presented for Review

QUESTIONS PRESENTED FOR REVIEW

I. Whether the three-pronged test for determining

the existence of requisite “minimum contacts” to justify

the exercise of long-arm jurisdiction (as utilized by the

Superior Court of Pennsylvania) is constitutionally ap-

propriate, the Supreme Court of Pennsylvania being

equally divided on the issue.

II. Irrespective of the appropriateness of the three-

pronged test, whether the mere pleading of a contract hav-

ing a “significant connection” with the forum state is con-

stitutionally sufficient to meet the “minimum contacts”

standard, the Supreme Court of Pennsylvania being equal-

ly divided on the issue.

III. Given the probability that the alleged con-

tamination occurred beyond Pennsylvania’s borders, wheth-

er the non-resident defendant’s one trip into Pennsylvania

was sufficient to meet the “continous and substantial” test

previously laid down by your Honorable Court.

IV. Inasmuch as the non-resident defendant had

contact with Pennsylvania only with respect to one of the

two loads of methylene chloride in question, whether its

connection with Pennsylvania was substantial enough to

make it “reasonable” for Pennsylvania to exercise long-

arm jurisdiction to adjudicate contamination disputes re-

lating to both loads.

V. Whether Pennsylvania has a legitimate interest

in adjudicating a breach of contract dispute between two

foreign corporations.

Questions Presented for Review

TABLE OF CONTENTS

Reference to Official Reports ............cccsssssssssssesees

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APPENDIX:

1.

ui

Pennsylvania Supreme Court’s Opinion in

Support of Affirmance and Opinion in Sup-

port of Reversal, as Reported at 456 A.2d

ae sicasevessegeiscevsscenesosoneeccosecsorsse

. Pennsylvania Superior Court Panel Opinion

of June 26, 1981, Affirming Common: Pleas

Order, as Reported at 435 A.2d 585 .........

. Pennsylvania Superior Court Panel Opinion

of October 24, 1980, Reversing Common

Pleas Order, as Reported at 426 A.2d 618

. Opinion of the Court of Common Pleas of

Mercer County Pennsylvania, Filed April 11,

1979 in Support of the Order Dated January

15, 1979 rccrccccssscsssscccessseeeeesesseeensnsseeeeeesnsees

_ Per curiam Order Filed by the Supreme

Court of Pennsylvania on February 9, 1983

_ Letter of March 31, 1983 From Carl Rice,

Prothonotary of Supreme Court of Pennsyl-

vania, Advising That the Application for Re-

argument Had Been Denied on March 28,

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TABLE OF AUTHORITIES

CASES:

Aftanase vs. Economy Baler Co., 343 F.2d 187 (8th

GUE. IAD: avsnsadricsnsshtosscsudensebascbedaneebaiaieeae

Bork et ux. vs. Mills, 458 Pa. 228, 329 A.2d 247

CRT) | cissescesncssinsqronsscesnnsennsnleniuresiotbenseamenaiiun

Bross Utilities Service Corp. vs. Aboubshait, 489 F.

Supp. 1366 (D. Conn. 1980), aff’d, 646 F.2d

Se CRE CAR. TI siviticcipoteessecam eset

Carty vs. Beech Aircraft Corp., 679 F.2d 1051 (3d

NGO, FHRIGED ccsccancuenecccceniiecanctecenschsnpnuinguneceaeias

Columbia Metal Culvert Co. vs. Kaiser Industries

Corp., 526 F.2d 724 (3d Cit. 19735) ..csciscesrerse.

Crompton vs. Park Ward Motors, Inc., 299 Pa. Su-

perior Ct. 40, 445 A.2d 137 (1982) wo...

Doyn Aircraft, Inc. vs. Wylie, 443 F.2d 579 (10th

Ce RTE) | srcech seniecvternrssvtnestccarsuccsaovemdocamanions

Image Ten, Inc. vs. Walter Reade Organization, Inc.,

456 Pa. 485, 322 A.2d 109 (1974) .ccccscccrees

International Shoe Co. vs. Washington, 326 US.

310, 90 L.Ed. 95, 66 S.Ct. 154 (1945) «0...

Iowa Electric Light & Power Co. vs. Atlas Corp., 603

F.2d 1301 (8th Cir. 1979), cert. denied, 445

U.S. 911, 63 L.Ed. 2d 327, 100 S.Ct. 1090

CRIIDD. - siisecncsicsscosiccsemcrinnceniecasesprenutgiiguiniieaes

Kenny vs. Alexson Equipment Co., 495 Pa. 107, 432

Pr. Bb GFE ATSB) > vericcssennscrcccetsenvvelsetmenicsanien

Kingsley & Keith Ltd. vs. Mercer International

Corp., 291 Pa. Superior Ct. 96, 435 A.2d 585

CADET) ccvccsencccvsecesscectnecuseccsessixeinesscenisisenineneiaiiots

14

11

Kulko vs. California Superior Court, 436 U.S. 84,

56 L.Ed. 2d 132, 98 S.Ct. 1690 (1978) .......... 15

Nissley vs. JLG Industries, Inc., Pa. Superior

Ct. je Pete OD CRIRSD csndincoescissnvansesannns 15

Perkins vs. Benguet Consolidated Mining Co., 342

U.S. 437, 96 L.Ed. 485, 72 S.Ct. 413 (1952) 12,13

Proctor & Schwartz, Inc. vs. Cleveland Lumber Co.,

228 Pa. Superior Ct. 12, 323 A.2d 11 (1974) 8

Reliance Steel Products Co. vs. Watson, Ess, Mar-

shall & Enggass, 675 F.2d 587 (3d Cir. 1982) 12

Rosen vs. Solomon, 374 F. Supp. 915 (E.D. Pa.

POTTED chatieaicadtatcashuaiiebismipssiianadéddewedes ctseeaioidiasese 14

Shern vs. Tractor Supply Co. of Grand Forks, 381

F. Supp. 1331 (D.N.D. 1974) veccccccesssesssesseeen 15

Southern Machine Co. vs. Mohasco Industries, Inc.,

SOT BAe 374 (GGG Civ. 19GB) «...ccccccesceccsssccessess 8

World-Wide Volkswagen Corp. vs. Woodson, 444

U.S. 286, 62 L.Ed. 2d 490, 100 S.Ct. 559

CRIN + ch nattesneck asdetvopeconstasescaintenngseesiavontent 7, 13, 14, 16

MISCELLANEOUS:

Note, Jurisdiction Over Nonresident Corporations

Based on a Single Act: A New Sole for Inter-

national Shoe, 47 Geo. L. J. 342 (1958) .......... 8

Section 35 (3) of the Restatement (Second) of Con-

oh FT a Rit T RNS aOR IDES ET 12

Reference to Official Reports of Opinions

REFERENCE TO OFFICIAL REPORTS OF OPINIONS

The opinions delivered by the courts below in the

case at bar are officially and unofficially reported as fol-

lows:

1. Pennsylvania Supreme Court’s opinion in support

of affirmance and opinion in support of reversal reported

at 456 A.2d 1333.

2. Pennsylvania Superior Court panel opinion af-

firming Common Pleas order reported at 291 Pa. Superior

Ct. 96, 435 A.2d 585.

3. Pennsylvania Superior Court panel opinion revers-

ing Common Pleas order reported at 426 A.2d 618, but

later withdrawn from publication.

2

Statement of Jurisdiction and Constitutional Provision

STATEMENT OF JURISDICTION

The per curiam order of the Supreme Court of Penn-

sylvania (based upon an equally divided court) which

affirmed the second opinion of the Superior Court panel

was entered on February 9, 1983. A timely application

for reargument was filed pursuant to Pa. R.A.P. 2541 et

seq., but it was denied by order dated March 28, 1983.

Jurisdiction to review said decision is vested in your

Honorable Court by 28 U.S.C. §2101(c). See also U. S.

Supreme Court Rule 20.

CONSTITUTIONAL PROVISION

The case at bar involves the Due Process Clause of

the Fourteenth Amendment to the Constitution of the

United States, which reads as follows:

“No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws.”

Statement of the Case

STATEMENT OF THE CASE

This appeal relates to the effort of the plaintiffs (one

a Canadian corporation and the other a New Jersey cor-

poration) to invoke Pennsylvania’s long-arm jurisdiction

in order to seek redress against three defendants, two of

which are Pennsylvania corporations and one of which is

a Canadian corporation. The amended complaint avers

that Kingsley and Keith (Canada) ordered 80,000 pounds

of methylene chloride from Kingsley and Keith (New

Jersey) on or about October 4, 1974, in order to fill a

contract with Celanese (Canada). In order to fill this

order, it is averred that Kingsley and Keith (New Jersey)

thereafter ordered two tank cars of methylene chloride

(approximately 40,000 pounds each) from Mercer Inter-

national Corporation and arranged with H. M. Trimble &

Sons, Limited (hereinafter referred to as Trimble) to

transport said methylene chloride to Canada.’

The amended complaint further avers that, on or

about October 12, 1974, Interstate Chemical Corporation,

an affiliate of Mercer International Corporation, delivered

a tank load of the said methylene chloride to Indianapolis,

Indiana, for transferral into a Trimble tank truck. On or

1Trimble is a subsidiary of Trimac Transportation Ltd., a

Canadian corporation. Other affiliate corporations within the

Trimac Transportation System are Maccam Transport Ltd., Oil

and Industry Suppliers Ltd., Municipal Tank Lines Ltd., West-

land Carriers Ltd., Adby Transport Ltd., J. Kearns Transport

Ltd., Mercury Tanklines Ltd., Territorial Transport Ltd., Tank

Lines Ltd., and Columbia Bulk Carriers Ltd.

Statement of the Case

about November 12, 1974, it is averred that Interstate

Chemical Corporation delivered a second tank load of

methylene chloride to a Trimble tank truck in Mercer,

Pennsylvania.

The amended complaint also avers that both tank

trucks of methylene chloride were found to be contami-

nated upon delivery to Celanese (Canada), and damages

are asserted for breach of the implied warranty of mer-

chantability and the implied warranty of fitness for a par-

ticular purpose.

The only averment of the amended complaint which

connects Trimble with the Commonwealth of Pennsylvania

is the averment of paragraph 12, which states that a load

of methylene chloride was delivered to a Trimble tank

truck in Mercer, Pennsylvania, on or about November 12,

1974.

The pretrial discovery discloses that the Pennsylvania

cerporations named as defendants have had no business

transactions with Trimble (or any other affiliate corpora-

tions within the Trimac Transportation System) except the

business relationship arising under the order placed by the

plaintiffs, that Trimble does not ship any merchandise

directly or indirectly into or through the Commonwealth

of Pennsylvania, and that Trimble has had no connection

with the Commonwealth of Pennsylvania other than the

load of methylene chloride which was picked up in Mercer,

Pennsylvania, on or about November 12, 1974.

By order dated January 15, 1979, the Court of Com-

mon Pleas of Mercer County dismissed Trimble’s prelim-

inary objections under Pa. R.C.P. 1017 (b) (1) and granted

the plaintiffs’ petition for leave to invoke the substituted

Statement of the Case

service provisions of Pa. R.C.P. 2180(c). Trimble’s mo-

tion for reconsideration was refused by order dated Feb-

ruary 13, 1979; whereupon, Trimble lodged an appeal

with the Superior Court of Pennsylvania.

By opinion and order filed on October 24, 1980 (as

reported at 426 A.2d 618 but later withdrawn from pub-

lication), the three-judge Superior Court panel which

heard the appeal reversed the Common Pleas order, on the

ground that the record did not disclose that the cause of

action arose from the Canadian defendant’s activities

within the forum state, and on the ground that there was

insufficient showing that the Canadian defendant’s con-

tacts with Pennsylvania were ‘“‘so continuous and sub-

stantial” as to justify the exercise of long-arm jurisdiction

over a cause of action occurring beyond Pennsylvania’s

borders.

Upon the plaintiffs’ application for reargument, the

Superior Court entered an order on March 30, 1981, re-

fusing reargument but allowing reconsideration by the

three-judge panel. By opinion and order filed on June 26,

1981 (as reported at 291 Pa. Superior Ct. 96, 435 A.2d

585), the three-judge panel reversed itself, withdrew its

earlier opinion and affirmed the Common Pleas order.

Trimble’s application for reargument was denied by order

dated October 9, 1981; whereupon, Trimble filed a peti-

tion for allowance of appeal with the Supreme Court of

Pennsylvania. Said petition was granted by order dated

December 22, 1981, and oral argument was heard by the

full seven-justice court on September 23, 1982.

Chief Justice O’Brien’s term expired on December 31,

1982; hence, he did not participate in the decision an-

Statement of the Case

nounced on February 9, 1983. The remaining six justices

were equally divided, with Mr. Justice Roberts (joined by

Justices Larson and Flaherty) filing an opinion in support

of affirmance, and Mr. Justice Nix (joined by Justices Mc-

Dermott and Hutchinson) filing an opinion in the support

of reversal. These opinions were accompanied by a per

curiam order affirming the second opinion of the Superior

Court on the ground that the Supreme Court was equally

divided.

Trimble thereafter filed a timely application for re-

argument pursuant to Pa. R.A.P. 2541 et seq., but this was

denied by order dated March 28, 1983. The issues being

questions of constitutional dimension, and the decisional

difficulties encountered by the Pennsylvania judges being

traced to differing interpretations of prior decisions of

your Honorable Court, Trimble now seeks a writ of cer-

tiorari so that full and fair analysis can be given to this

long-arm controversy.

Argument

ARGUMENT

I. APPROPRIATENESS OF THREE-PRONGED

TEST

In International Shoe Co. vs. Washington, 326 US.

310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), your Honorable

Court proclaimed the “minimum contacts” test for deter-

mining whether a court may constitutionally exercise in

personam jurisdiction over a non-resident defendant. This

holding was recently reaffirmed in World-Wide Volks-

wagen Corp. vs. Woodson, 444 U.S. 286, 62 L.Ed. 2d

490, 100 S.Ct. 559 (1980), wherein your Honorable

Court declared (at 444 U.S. 291-92):

“As has long been settled, and as we reaffirm

today, a state court may exercise personal jurisdic-

tion over a non-resident defendant only so long as

there exists ‘minimum contacts’ between the defend-

ant and the forum State... . The concept of minimum

contacts, in turn, can be seen to perform two related,

but distinguishable, functions. It protects the de-

fendant against the burdens of litigating in a distant

or inconvenient forum. And it acts to ensure that the

States, through their courts, do not reach out beyond

the limits imposed on them by their status as co-equal

sovereigns in a federal system.”

In applying the constitutional standard, the Superior

Court of Pennsylvania has adopted a three-pronged test for

determining whether the requisite contacts are present for

asserting long-arm jurisdiction. First, the defendant must

Argument

have purposefully availed itself of the privilege of acting

within the forum state, thus invoking the benefits and pro-

tection of its laws. Secondly, the cause of action must

arise from defendant's activities within the forum state.

Thirdly, the acts of the defendant must have a substantial

enough connection with the forum state to make the exer-

cise of jurisdiction over it reasonable. See Proctor &

Schwartz, Inc. vs. Cleveland Lumber Co., 228 Pa. Supe-

rior Ct. 12,323 A.2d 11 (1974).

In the opinion in support of reversal filed by three

justices of the Pennsylvania Supreme Court in the case at

bar, Mr. Justice Nix declares that ‘“‘we are convinced that

this three-pronged test represents workable guidelines in

establishing whether there exist ‘minimum contacts’ among

the defendant, the forum and the litigation.”” On the other

hand, Mr. Justice Roberts declares in the opinion in sup-

port of affirmance that the three-pronged test is rigid and

inappropriate. The resulting confusion will trouble not

only the Pennsylvania courts, but also the courts of sister

states, unless and until your Honorable Court addresses

and reso! yes the issue.

A similar three-pronged test is in use in numerous

jurisdictions. See Southern Machine Co. vs. Mohasco In-

dustries, Inc., 401 F.2d 374 (6th Cir. 1968); Doyn Air-

craft, Inc. vs. Wylie, 443 F.2d 579 (10th Cir. 1971).

See also Note, Jurisdiction Over Nonresident Corporations

Based on a Single Act: A New Sole for International Shoe,

47 Geo. L. J. 342 (1958).

It is right and appropriate, therefore, that your Hon-

orable Court grant certiorari so that the propriety of the

three-pronged test can be finally determined.

Argument

II, APPLICATION OF SECOND PART OF THREE-

PRONGED TEST

The second part of the three-pronged test requires

that the plaintiff’s cause of action must arise from the de-

fendant’s activities within the forum state. This require-

ment is derived fiom International Shoe Co. vs. Washing-

ton, supra, wherein your Honorable Court sanctioned the

right of a state to require a non-resident to respond in its

courts as to obligations which “arise out of or are con-

nected with the activities within the state.’ 326 U.S. at

319. Accordingly, irrespective of the appropriateness of

the three-pronged test as a whole, it is apparent that the

second part is constitutionally mandated,

In applying the second part of the three-pronged test,

the three-judge Superior Court panel in the case at bar

stated that it is sufficient for the plaintiff to plead a con-

tract having a “significant connection” with Pennsylvania,

and a breach of that contract. The panel quickly ac-

knowledged, however, that “it may be argued that this is

too broad a reading” of the constitutional standard.

Kingsley & Keith Ltd. vs. Mercer International Corp., 291

Pa. Superior Ct. 96, 435 A.2d 585, 591 (1981).

The Pennsylvania Supreme Court’s opinion in sup-

port of reversal rejects the foregoing interpretation for

three reasons. First, the “‘significant connection’’ test

creates a distinction between assumpsit actions and tres-

pass actions which is constitutionally unacceptable. Sec-

ondly, such an interpretation ignores the situs of the al-

leged breach and would require no tangible contact with

10

Argument

the forum state. Thirdly, the interpretation fails to de-

lineate guidelines which would enable the Pennsylvania

courts to determine which out-of-state contracts have a

“significant connection’’ with Pennsylvania and which do

not.

Turning to the facts in the case at bar, the Pennsyl-

vania Supreme Court's opinion in support of reversal then

concludes that the second part of the three-pronged test

has not been met. Specifically, the opinion states (at 456

A.2d 1339):

“The mere fact that the contract caused one of

the shipments to be picked up in Pennsylvania, ab-

sent an allegation that the breach occurred during

the sojourn in Pennsylvania, fails to meet the requisite

contact under this prong of the test. Nor can this

deficiency be ignored simply because appellees are

unable to determine where the breach occurred.”

It has been held that the ‘significant connection” con-

cept has no application where the contract in question was

neither solicited, negotiated, nor executed in the forum

state and where only a small part of the total performance

would involve the forum state. See Jowa Electric Light

& Power Co. vs. Atlas Corp., 603 F.2d 1301 (8th Cir.

1979), cert. denied, 445 U.S. 911, 63 L.Ed. 2d 327, 100

S.Ct. 1090 (1980).

Attention is also directed to Carty vs. Beech Aircraft

Corp., 679 F.2d 1051 (3d Cir. 1982), wherein it was held

that, in the commercial context, the cause of action arises

for jurisdictional purposes where the property has been

damaged. Further, in Kenny vs. Alexson Equipment Co.,

11

Argument

495 Pa. 107, 432 A.2d 974 (1981), it was held that a

single transaction is insufficient to meet the “minimum

contacts” test unless the seller has purposely engaged in

continuous distribution activity within the forum state,

Accordingly, it is submitted that the mere averment

of a contract having a “significant connection” with Penn-

sylvania is insufficient to satisfy the second part of the

three-pronged test. Moreover, the plaintiff in the case at

bar being unable to aver that the alleged contamination

occurred within Pennsylvania or that the non-resident de-

fendant had purposely engaged in continuous distribution

activity within Pennsylvania, it is submitted that the ‘“mini-

mum contacts’’ reauirement for the exercise of long-arm

jurisdiction has not been met. Certiorari should be

granted, therefore. so that the “significant connection”

concept can be further analyzed and clarified.

III. APPLICATION OF “CONTINUOUS AND SUB-

STANTIAL” TEST

In Bork et ux. vs. Mills, 458 Pa. 228, 329 A.2d 247

(1974), the Pennsylvania Supreme Court held that, where

the complaint suggests on its face that the cause of action

occurred beyond Pennsylvania's borders, the plaintiff must

show more than “minimum contacts” in order to obtain

jurisdiction over a non-resident defendant. In this situa-

tion, the plaintiff must show that the non-resident defend-

ant’s contacts with Pennsylvania are ‘‘so continuous and

substantial as to make it reasonable” for the Pennsylvania

courts to exercise long-arm jurisdiction.

12

Argument

The “continuous and substantial” test is nothing

peculiar to Pennsylvania. Indeed, it is derived from the

holding of your Honorable Court in Perkins vs. Benguet

Consolidated Mining Co., 342 U.S. 437, 96 L.Ed. 485, 72

S.Ct. 413 (1952); and it appears in Section 35(3) of the

Restatement (Second) of Conflict of Laws.

A cause of action arising out of non-forum-related

activity was at issue in Reliance Steel Products Co. vs.

Watson, Ess, Marshall & Enggass, 675 F.2d 587 (3d Cir.

1982). In rejecting long-arm jurisdiction, the court de-

clared that the proof required to meet the “continuous and

substantial’ test must be ‘‘extensive and persuasive.”

In the case at bar, the plaintiff has shown nothing

which could be considered “extensive and persuasive”’

concerning the non-resident defendant's contacts with the

forum state. Indeed, the plaintiff has shown absolutely

no contacts between the non-resident defendant and Penn-

sylvania with regard to the load of methylene chloride

which was picked up in Indianapolis, Indiana. As to the

load of methylene chloride which was picked up in Mercer,

Pennsylvania, the plaintiff has shown only that one of the

non-resident defendant’s trucks used Pennsylvania high-

ways in order to transport to a Canadian destination the

subject matter of a contract between two other Canadian

corporations. The plaintiff avers that this load of

methylene chloride was found to be contaminated upon

arrival at the Canadian destination, but it is unable to

aver that the contamination occurred in Pennsylvania. It

js just as probable, of course, that the contamination oc-

curred in Canada or in any of the other states through

which the truck passed.

13

Argument

In concluding that the plaintiff has not met the ‘‘con-

tinuous and substantial’’ test, the Pennsylvania Supreme

Court’s opinion in support of reversal states (at 456 A.2d

1339-40) :

“The record discloses that except for the single

entry into Pennsylvania, Trimble Canada has had ab-

solutely no contacts, ties or relations within this Com-

monwealth. In the absence of facts showing Trimble

Canada’s activities in Pennsylvania to be continuous

and substantial, jurisdiction over appellant, Trimble

Canada may not be asserted consistent with due pro-

cess.”

Certiorari should be granted, therefore, so that the

Perkins holding can be authoritatively interpreted in this

multi-contract transportation context.

IV. APPLICATION OF THIRD PART OF THREE-

PRONGED TEST

The third part of the three-pronged test requires that

the acts of the non-resident defendant must have a sub-

stantial enough connection with the forum state to make

the exercise of jurisdiction over it reasonable. In this re-

gard, reference is made to World-Wide Volkswagen Corp.

vs. Woodson, supra, wherein your Honorable Court de-

clared (at 444 U.S. 297):

“the foreseeability that is critical to due

process analysis is not the mere likelihood that a

product will find its way into the forum State.

Rather, it is that the defendant's conduct and con-

14

Argument

nection with the forum State are such that he should

reasonably anticipate being haled into court there... .

The Due Process Clause, by insuring the ‘orderly ad-

ministration of the laws,’ . . . gives a degree of pre-

dictability to the legal system that allows potential

defendants to structure their primary conduct with

some minimum assurance as to where that conduct

will and will not render them liable to suit.”

In this regard, it must be noted that the convenience

of the parties and the interest of the forum state are

secondary factors. Prime factors are the quality and

quantity of the non-resident’s contacts with the forum

state and the relationship of the cause of action to these

contacts. See Aftanase vs. Economy Baler Co., 343 F.2d

187, 197 (8th Cir. 1965) (Blackman, J.); Rosen vs.

Solomon, 374 F. Supp. 915 (E.D. Pa. 1974).

Furthermore, it has been held that, in a breach of

contract situation, long-arm jurisdiction must be based

upon a showing that the contract ‘clearly and expressly

contemplated and required performance” in the forum

state. See Bross Utilities Service Corp. vs. Aboubshait,

489 F. Supp. 1366, 1372 (D. Conn. 1980), aff'd, 646

F.2d 559 (2d Cir. 1980).

The Pennsylvania Supreme Court’s opinion in sup-

port of affirmance filed in the case at bar overlooks the

fact that the non-resident defendant had absolutely no con-

tact with Pennsylvania with respect to the load of

methylene chloride picked up in Indiana. As to this load,

it could not possibly be reasonable for the non-resident

defendant to have anticipated that it might be “‘haled into

15

Argument

court” in Pennsylvania. See Shern vs. Tractor Supply

Co. of Grand Forks, 381 F. Supp. 1331, 1336 (D. N.D.

1974). As to the load of methylene chloride picked up

in Pennsylvania, perhaps it would have been reasonable

for the non-resident defendant to have anticipated that it

might be “haled intc court” in Pennsylvania should a

vehicular accident occur therein. It would not be reason-

able, however, for said defendant to anticipate that it could

be ‘“‘haled into court” in Pennsylvania in connection with

a claim of contamination occurring in Canada or in some

other state through which the truck passed. See Nissley

vs. JLG Industries, Inc., Pa. Superior Ct. , 452

A.2d 865 (1982). In short, Pennsylvania is not a “fair

forum” for the adjudication of a breach of contract cause

of action occurring beyond Pennsylvania’s borders. See

Kulko vs. California Superior Court, 436 U.S. 84, 100, 56

L.Ed. 2d 132, 146, 98 S.Ct. 1690 (1978).

V. PENNSYLVANIA’S INTEREST IN ADJUDICA-

TING A DISPUTE BETWEEN FOREIGN CORPORA-

TIONS

In Image Ten, Inc. vs. Walter Reade Organization,

Inc., 456 Pa. 485, 322 A.2d 109 (1974), the Pennsyl-

vania Supreme Court stated that the purpose of the Penn-

sylvania long-arm statute is “to provide an appropriate

forum for citizens to seek redress for harm caused by

foreign corporations which have availed themselves of the

privilege of ‘doing business’ in this Commonwealth. . . .”

(Emphasis added.)

16

Argument

The policy favoring citizens over non-citizens when

it comes to access to a judicial forum was emphasized in

Columbia Metal Culvert Co. vs. Kaiser Industries Corp.,

526 F.2d 724, 730 (3d Cir. 1975). It was there stated

that Pennsylvania’s interest in adjudicating a dispute is

much less compelling where none of its citizens is seeking

redress, but where a foreign corporation is seeking to use

Pennsylvania’s long-arm jurisdiction in order to reach an-

other foreign corporation. See also Crompton vs. Park

Ward Motors, Inc., 299 Pa. Superior Ct. 40, 445 A.2d 137

(1982), wherein the court indicated that Pennsylvania has

little interest in adjudicating a dispute arising under an

out-of-state contract, even though it affects a Pennsylvania

resident, where the conduct in question occurred beyond

Pennsylvania’s borders. ‘

If Pennsylvania has an interest in the resolution of a

breach of contract dispute between two Canadian corpo-

rations concerning the transportation of several loads of

methylene chloride from the United States to Canada (one

of which involves the use of Pennsylvania highways) , then

Pennsylvania could be said to have an interest in resolving

any multi-state breach of contract case where even slight

performance under the contract touches Pennsylvania.

Such a result, it is submitted, is neither fair nor reasonable

under the constitutional standard. See World-Wide Volks-

wagen Corp. vs. Woodson, supra, wherein your Honor-

able Court declared that Oklahoma had no legitimate in-

terest in providing a forum for New York residents to bring

a products liability action against non-resident sellers of

automobiles.

It must be noted that there is no allegation in the rec-

ord in the case at bar that the non-resident defendant’s

17

Argument

transportation of the one load of methylene chloride over

Pennsylvania highways in any way exposed Pennsylvania

residents to danger. How is it, then, that the Pennsylvania

Supreme Court’s opinion in support of affirmance could

assert that Pennsylvania has an interest in assuring the

safe transportation of goods over its highways? Nor is

there any allegation in the record that the non-resident

defendant breached a contractual undertaking with a Penn-

sylvania domiciliary. The contract with Mercer Inter-

national Corporation and Interstate Chemical Corporation,

the Pennsylvania defendants, was solely the making of the

Canadian plaintiff. After this contract was entered into,

the plaintiff contracted with Trimble, the Canadian de-

fendant, to transport the subject matter thereof from a

point in Pennsylvania and a point in Indiana to a specified

Canadian destination. As between the Canadian defend-

ant and the two Pennsylvania defendants, there was no

contract and no possibility of a breach of contract dispute.

How is it, then, that it could be asserted that Pennsylvania

has an interest in assuring that Pennsylvania manufac-

turers do not bear unwarranted liability? The Pennsyl-

vania courts can properly adjudicate any liability claims

against Pennsylvania manufacturers without becoming en-

tangled in collateral disputes relating to out-of-state trans-

portation contracts.

CONCLUSION

For the reasons set forth above, it is submitted that

your Honorable Court should grant certiorari. A delicate

matter of constitutional law is at issue, and it has greatly

18

Argument

troubled the Pennsylvania judges. The Common Pleas

judge sustained the exercise of long-arm jurisdiction; the

three-judge Superior Court panel initially reversed in a

unanimous opinion; upon reconsideration, the panel re-

versed itself and unanimously affirmed the Common Pleas

decision; the Pennsylvania Supreme Court allowed an ap-

peal; but the second Superior Court opinion was affirmed

because the justices of the Supreme Court were equally

divided. It is obvious that further guidance is needed

from your Honorable Court as to the breach of contract

aspects of long-arm jurisdiction.

The first issue to be addressed is the propriety of the

three-pronged test adopted by the Superior Court of Penn-

sylvania and numerous other jurisdictions. The Pennsyl-

vania Supreme Court’s opinion in support of affirmance

refers to the test as inappropriate and rigid.

Secondly, it is submitted that the Pennsylvania Su-

preme Court’s opinion in support of reversal is correct in

its conclusion that the mere pleading of a contract having

a “significant connection” with Pennsylvania is constitu-

tionally insufficient to meet the “minimum contacts”

standard, and in its conclusion that the non-resident de-

fendant’s one trip into Pennsylvania was insufficient to

meet the “continuous and substantial” test for adjudicating

liability under a cause of action occurring beyond Penn-

sylvania’s borders.

Finally, it is submitted that the Pennsylvania Supreme

Court’s opinion in support of affirmance misapprehended

Pennsylvania’s interest in adjudicating the breach of con-

tract dispute raised in the case at bar. The case involves

a Canadian corporation seeking redress against another

19

Argument

Canadian corporation with regard to a contractual under-

taking entered into in Canada and calling for ultimate per-

formance in Canada. Moreover, of the two trucks in ques-

tion, one of them never touched Pennsylvania soil in any

respect. It would be unreasonable and offensive to the

due process standard, therefore, for Pennsylvania to exer-

cise long-arm jurisdiction over the Canadian defendant.

Wherefore, Trimble prays that your Honorable Court

grant its petition for a writ of certiorari so that these is-

sues can be ally and fuirly analyzed.

CusicK, MADDEN, JOYCE AND

McKay

By P. RAYMOND BARTHOLOMEW

Attorneys for Petitioner

la

Opinion, Supreme Court of Pa.

APPENDIX

KINGSLEY AND KEITH (CANADA) LIMITED and

Kingsley and Keith Chemical Corporation

v.

MERCER INTERNATIONAL CORPORATION and

Interstate Chemical Corporation and H.M. Trimble & Sons,

Limited

Appeal of H.M. TRIMBLE & SONS, LIMITED

SUPREME COURT OF PENNSYLVANIA

Argued Sept. 23, 1982

Decided Feb. 9, 1983

Reargument Denied March 28, 1983

[456 A.2d 1333]

ORDER

PER CURIAM.

The Court being equally divided, the Order of the

Superior Court is affirmed.

ROBERTS, C.J., files an opinion in support of af-

firmance in which LARSEN and FLAHERTY, JJ., join.

NIX, J., files an opinion in support of reversal in

which McDERMOTT and HUTCHINSON, JJ., join.

O’BRIEN, former C.J., did not participate in the de-

cision of this case.

2a :

Opinion, Supreme Court of Pa.

OPINION IN SUPPORT OF AFFIRMANCE

ROBERTS, Chief Justice.

The record amply supports the order of the Court of

Common Pleas of Mercer County sustaining its exercise

of jurisdiction over appellant, H.M. Trimble & Sons,

Limited. As the Opinion in Support of Reversal ac-

knowledges, appellant “purposely availed itself of the

privilege of conducting activities within the forum state”

by partially performing the contract with appellees in Penn-

sylvania. Appellant entered into a contract to transport

goods manufactured in Pennsylvania from Pennsylvania

to Canada. In order to take custody of the goods in Penn-

sylvania, appellant entered into a “trip lease” of its equip-

ment with Coastal Tenklines, Limited, which authorized

appellant to enter Pennsylvania for that purpose. Com-

pare World-Wide Volkswagen Corp. v. Woodson, 444 US.

286, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980), and Kenny

vy. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974

(1981) (jurisdiction inappropriate where defendant’s con-

tact with forum is fortuitous). The state’s interest in as-

suring that a contract for the safe transportation of Penn-

sylvania goods is properly performed must be evident.

Not only does Pennsylvania have an interest in highway

safety; it also has an interest in assuring that Pennsylvania

manufacturers do not bear unwarranted liability for goods

proper when made and delivered to the buyer’s carrier.

See McGee v. International Life Ins. Co., 355 U.S. 220,

78 S.Ct. 199, 2 L.Ed. 2d 223 (1957).

Contrary to the assertion of the Opinion in Support

of Reversal, it must be obvious that the reasonableness of

asserting jurisdiction over a particular defendant is not

3a

Opinion, Supreme Court of Pa.

properly determined by the existence or non-existence of a

mere allegation in the plaintiff's complaint of the situs of

a claimed breach of contract. Indeed, in this case, ap-

pellee’s claim against appellant for the improper carriage

of goods does not even require proof that appellant's al-

leged contamination of the goods ‘‘occurred during [appel-

lant’s] sojourn in Pennsylvania,” which, according to the

Opinion in Support of Reversal, would be a necessary al-

legation for the exercise of jurisdiction. All appellee must

prove is that the goods were contaminated when appellant

made the delivery in Canada and that the goods had been

in a satisfactory condition when appellant assumed cus-

tody in Pennsylvania. While the situs of an alleged

breach, if known, is relevant to a jurisdictional inquiry, it

is only one of many potential contacts between the de-

fendant, the forum, and the litigation which may support

jurisdiction.’

It is not unfair to require appellant, a Canadian-

based carrier, to defend in a Pennsylvania court in an ac-

tion for breach of contract instituted by the Canadian

buyer against both the carrier and the Pennsylvania manu-

facturer who supplied the goods which the carrier con-

tracted to transport from Pennsylvania to Canada. As the

1 The inappropriateness of the rigid, ‘‘three-pronged test’’

employed by the Opinion in Support of Reversal is evidenced by

the results of the test as applied to this case. Rather than prop-

erly analyzing the reasonableness of jurisdiction in light of all

relevant contacts between the defendant, the forum, and the liti-

gation, see International Shoe Co. v. Washington, 326 U.S. 310,

66 S.Ct. 154, 90 L.Ed. 95 (1945), the Opinion in Support of

Reversal deems controlling only one potential contact, the ‘‘situs’’

of the alleged contractual breach.

4a

Opinion, Supreme Court of Pa.

Supreme Court of the United States stated in /nternational

Shoe,

“to the extent that a corporation exercises the privi-

lege of conducting activities within a state, it enjoys

the benefits and protection of the laws of that state.

The exercise of that privilege may give rise to obliga-

tions; and, so far as those obligations arise out of or

are connected with the activities within the state, a

procedure which requires the corporation to respond

to a suit brought to enforce them can, in most in-

stances, hardly be said to be undue.”

International Shoe Co. v. Washington, 326 U.S. 310, 319,

66 S.Ct. 154, 160, 90 L.Ed. 95 (1945) (emphasis sup-

plied).? Accordingly, Pennsylvania’s exercise of jurisdic-

tion over appellant meets the requirements of due process,

and the order of the Superior Court, 291 Pa. Super. 96,

435 A.2d 585, must be affirmed.

LARSEN and FLAHERTY, JJ., join in this opinion

in support of affirmance.

OPINION IN SUPPORT OF REVERSAL

NIX, Justice.

In the present appeal, we are confronted with the

issue of whether the exercise of “long-arm” jurisdiction

over a foreign corporation, whose only contact with the

The emphasis supplied is also supplied by the Opinion in

Support of Reversal in quoting International Shoe; yet, remark-

ably, that opinion fails to consider the very language which it

has emphasized,

5a

Opinion, Supreme Court of Pa.

Commonwealth of Pennsylvania was the partial perform-

ance of a contract which was entered into in Canada by

the foreign corporation and another Canadian corporation,

violates the due process clause of the Fourteenth Amend-

ment. A chronology of the pertinent facts is requisite.

Kingsley and Keith Ltd. (Kingsley Canada), a Cana-

dian corporation, ordered approximately 80,000 pounds

of methylene chlorid: from Kingsley and Keith Chemical

Corporation (Kingsley New Jersey), a New Jersey corpo-

ration, pursuant to a supply contract with Celanese Ltd.,’

another Canadian corporation to which ultimate delivery

was to be made. On October 10, 1974, Kingsley New

Jersey ordered two tank cars (approximately 40,000

pounds each) from Mercer International Corporation

(Mercer Penna.) ,* a Pennsylvania corporation.

The contract for delivery of the methylene chloride

was entered into between the Montreal office of Kingsley

Canada and H.M. Trimble & Sons, Ltd., a Canadian cor-

poration (Trimble Canada).’ Interstate Chemical Corpo-

ration (Interstate Penna.), a Pennsylvania corporation,

1 Celanese Ltd. is not a party to the instant litigation.

2 Mercer International Corporation and Interstate Chemical

Corporation, another Pennsylvania corporation, are affiliated

corporations doing business in Mercer, Pennsylvania.

° HLM. Trimble & Sons is one of several affiliated corpora-

tions within the Trimac Transportation System, a Canadian cor-

poration. Although Trimac was originally listed as a defendant,

it became known later that the contract for delivery was entered

into and performed by Trimble. A stipulation was entered into

naming Trimble as a defendant, rather than Trimac, and all plead-

ings and documents pertinent to the litigation referring to Trimac

are to be construed to mean Trimble Canada.

6a

Opinion, Supreme Court of Pa.

was to provide the methylene chloride. On October 12,

1974, a tank truck of Interstate Penna. delivered approxi-

mately 40,000 pounds (12) of the methylene chloride for

transfer to a tank truck of Trimble Canada in Indianapolis,

Indiana, which in turn was to be delivered to Celanese in

Canada.

On November 12, 1974, a second tank truck of Inter-

state Penna. transferred the remaining half of the methylene

chloride (approximately 40,000 pounds) to a Trimble

Canada tank truck in Mercer, Pennsylvania which load

was also to be delivered to Celanese in Canada.

Upon arrival, testing and inspection in Canada,

Celanese rejected the methylene chloride claiming that it

was contaminated. Kingsley Canada and Kingsley New

Jersey thereafter filed suit in the Court of Common Pleas

of Mercer County against Mercer Penna., Interstate Penna.

and Trimble Canada

The causes of action against Mercer Penna. and Inter-

state Penna., as reflected in the amended complaint in

assumpsit, assert breaches of implied warranties of mer-

chantability and fitness for intended purpose concerning

the methylene chloride. In addition, the amended com-

plaint contains a separate count against Interstate Penna.

for its transporting of the tank load of methylene chloride

to Indianapolis, Indiana, where it was then transferred to

a Trimble Canada tank car. The cause of action asserted

against Trimble Canada claims a breach of contract to

transport and deliver, alleging that Trimble Canada failed

to take proper steps to avoid contamination of the methy-

lene chloride.

7a

Opinion, Supreme Court of Pa.

Trimble Canada filed preliminary objections raising,

inter alia, the question of jurisdiction of the Pennsylvania

courts. Subsequently, Kingsley Canada and Kingsley New

Jersey filed an amended complaint and after hearing, dated

January 15, 1979, the Court of Common Pleas dismissed

the preliminary objections and granted leave to the plain-

tiffs to serve the amended complaint at the home office of

Trimble Canada by registered mail.’

On appeal, a panel of the Superior Court initially re-

versed the order of the Court of Common Pleas, holding

that Trimble Canada’s activities within Pennsylvania were

insufficient to support jurisdiction.

Upon application of plaintiff-appellees for reargu-

ment, the Superior Court entered an order denying reargu-

ment but granting reconsideration. By opinion’ and order

filed on June 26, 1981, the three-judge panel reversed its

position and affirmed the Court of Common Pleas, holding

Trimble Canada amenable to the jurisdiction of the Penn-

sylvania courts.

In Kenny v. Alexson Equipment Co., 495 Pa. 107,

432 A.2d 974 (1981) this Court recently set forth the

‘The authority for this service may be found in Pa. R.C.P.

R. 2180(c), which provides:

If service cannot be made under any of the methods set

forth in subdivision (a) or (b) of this rule, the court upon

petition shall authorize service by registered mail directed to

the Secretary of the Commonwealth and to the corporation or

similar entity at its last registered address or principal place

of business, or by publication as the court may direct.

5 Kingsley and Keith, Ltd. v. Trimble, 291 Pa. Superior Ct.

96, 455 A.2d 585 (1981).

8a

Opinion, Supreme Court of Pa.

parameters of the Fourteenth Amendment's due process

limitation on a state's exercise of in personam jurisdiction

over a non-resident defendant.

It is well settled that a state court may exercise

personal jurisdiction over a non-resident defendant

only so long as there exist “‘minimum contacts” be-

tween the defendant and the forum state. Jnter-

national Shoe Co. v. Washington, 326 U.S. 310, 66

S.Ct. 154, 90 L.Ed. 95 (1945). The due process

clause ‘‘does not contemplate that a state may make

binding a judgment in personam against an individual

or corporate defendant with which the state has no

contacts, ties or relations.”” Jd. at 319, 66 S.Ct. at

159, 90 L.Ed. at 104. This requirement is based on

the proposition that maintenance of suit against a

non-resident defendant must not offend traditional

notions of ‘‘fair play and substantial justice.” /nter-

national Shoe, supra. [Footnote omitted]

Id. at 117-18, 432 A.2d at 980.

The Superior Court, in the instant appeal, applied a

three-pronged test to determine whether Trimble Canada

possessed the requisite ‘minimum contacts” with Penn-

sylvania. This test,” first enunciated in Southern Machine

® A similar three-pronged test has been adopted by numerous

jurisdictions. See, ¢.g.. Doyn Aircraft, Inc. v. Wylie, 443 F.2d

579 (10th Cir. 1971); Aftanase v. Economy Baler Co., 343 F.2d

187 (Sth Cir. 1965); Kourkene v. American B.B.R., Inc., 313

F.2d 769 (9th Cir. 1963); L.D. Reeder Contractors of Arizona v.

Higgins Ind., 265 F.2d 768 (9th Cir. 1959); White v. Goldth-

waite, 204 Kan, 83, 460 P.2d 578 (1969); Tyee Construction Co.

». Dulien Steel Products, Ine. of Washington, 62 Wash.2d 106,

9a

Opinion, Supreme Court of Pa.

Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir.

1968) and adopted by the Superior Court in Proctor &

Schwartz v. Cleveland Lumber Co., 228 Pa. Superior Ct.

12,323 A.2d 11 (1974) provides:

First, the defendant must have purposefully

availed itself of the privilege of acting within the

forum state thus invoking the benefits and protections

of its laws. Hanson v. Denckla, [357 U.S. 235, 78

S.Ct. 1228, 2 L.Ed. 2d 1283 (1958) ]. Secondly, the

cause of action must arise from defendant’s activities

within the forum state. See Southern Mach. Co v.

Mohasco Indus.., Inc., 401 F.2d 374 (6th Cir. 1968) ;

Electric Regulator Corp. v. Sterling Extruder Corp.,

280 F. Supp. 550 (D. Conn. 1968). Lastly, the acts

of the defendant must have a substantial enough con-

nection with the forum state to make the exercise of

jurisdiction over it reasonable. International Shoe

Co. v. Washington, supra; see Southern Mach. Co. v.

Mohasco Indus.. Inc., supra (401 F.2d 374 (6th Cir.

1968) ]; see also In-Flight Devices Corp. v. Van

Dusen Air, Inc. 466 F.2d 220 (6th Cir. 1972); Kour-

kene v. American BBR, Inc., 313 F.2d 769 (9th Cir.

1963).

Id. 228 Pa. Super. at 19, 323 A.2d at 15.

981 P.2d 245 (1963). In addition, Southern Machine has been

followed in: In-Flight Devices Corp. v. Van Dusen Air, Inc., 466

F.2d 220 (6th Cir. 1972); King v. Hailey Chevrolet Co., 462

F.2d 63 (6th Cir. 1972); Hill », Smith, 337 F. Supp. 981 (W.D.

Mich. 1971). See also Note, Jurisdiction Over Nonresident Cor-

porations Based on a Single Act: A New Sole for International

Shoe, 47 Geo. L.J. 342 (1958).

10a

Opinion, Supreme Court of Pa.

A number of commentators have submitted that the

three-pronged test represents appropriate guidelines, based

on the reasoning of /nternational Shoe and its progeny,

against which due process should be analyzed. See, e.g.,

Comment, Pennsylvania's New Long-Arm Statute, 79 Dick.

L, Rev. 51, 77 n. 136 (1974); Note, Jurisdiction Over

Nonresident Corporations Based on a Single Act: A New

Sole for International Shoe, 47 Geo. L.J. 342 (1958).

In Kenny v. Alexson Equipment Co., supra, this Court

held that the non-resident defendant had not purposefully

availed himself of the privilege of conducting activities

within Pennsylvania and thus could not be rendered amen-

able to in personam jurisdiction consistent with due pro-

cess. It was therefore unnecessary for us to decide what,

if any, additional guidelines should be addressed. In the

instant appeal, Trimble Canada implicitly concedes that,

through its entering into Pennsylvania to partially perform

the delivery contract, it purposely availed itself of the

privilege of conducting activities within the forum state.

We are therefore required to determine what other factors

are necessary to insure that due proces is satisfied before

personal jurisdiction may be asserted. After careful re-

view, we are convinced that this three-pronged test repre-

sents workable guidelines in establishing whether there

exist “minimum contacts” among the defendant, the forum

and the litigation.

The second prong requires that “the cause of action

must arise from defendant's activities within the forum

state.”” This requirement is derived from International

Shoe, supra, wherein the United States Supreme Court

noted:

lla

Opinion, Supreme Court of Pa.

...[T]Jo the extent that a corporation exercises

the privilege of conducting activities within a state, it

enjoys the benefits and protection of the laws of that

state. The exercise of that privilege may give rise to

obligations, and, so far as those obligations arise out

of or are connected with the activities within the state,

a procedure which requires the corporation to respond

to a suit brought to enforce them can, in most in-

stances, hardly be said to be undue. [Emphasis

added. ]

326 US. at 319, 66 S.Ct. at 160.

One commentator has suggested that the activities of

the non-resident defendant are related to the cause of ac-

tion when there exists ‘‘substantive relevance’ between

the facts constituting the forum contact and the facts re-

quired to prove the substantive cause of action. 1980

Supreme Court Review at 82.

The test can be illustrated by the facts of Peters

v. Robin Airlines, 281 A.D. 903 (2d Dept. 1953).

A New York statute purported to grant jurisdiction

over operators of aircraft in collision litigation if the

craft had landed at or departed from a New York

airfield. In a brief opinion, the Peters court refused

to apply the statute because the New York stopover

did not contribute to the crash. The stopover was

of no substantive relevance to the dispute, since the

complaint did not allege that the collision was due to

negligent operation or maintenance there. For this

reason, it should be categorized as an unrelated con-

tact. [Footnotes omitted. ]

Id. at 84.

12a

Opinion, Supreme Court of Pa.

The purpose of the second prong, as it relates to sub-

stantive relevance, is to insure that the acts of the non-

resident defendant within the forum state represent the

factual predicates upon which a cause of action are to be

based. Without this requirement, the nexus between the

defendant’s activities, the cause of action and the forum

state have not been established. Such a causal connection

is critical to the assertion of long-arm jurisdiction.

In the Superior Court opinion in the instant case,

Judge Spaeth, writing for the panel, explained the second

prong of the minimum contacts test as follows:

As we read it, the second part of the... test may

be satisfied by pleading a contract having a signifi-

cant connection with Pennsylvania ... and a breach

of that contract. We recognize that it may be argued

that this is too broad a reading. [Citation omitted.]

291 Pa. Superior Ct. at 108,435 A.2d at 591.

This interpretation of the second prong of the test

must be rejected for several reasons. First, the language,

requiring only that the contract have a significant connec-

tion with the forum and a breach of that contract, is vague

and fails to delineate definitive guidelines in order to de-

termine when a significant connection exists.

Equally important, where, as here, the situs of the

breach is critical, such an interpretation ignores the non-

resident defendant’s activities in the forum state in this

regard. Finally, implicit in the Superior Court’s interpre-

tation of the second prong in the instant case, is the crea-

tion of an unacceptable distinction between actions in as-

13a

Opinion, Supreme Court of Pa.

sumpsit and those in trespass for purposes of asserting

constitutionally permissible long-arm jurisdiction.’

As applied to the facts of the instant case, it is evident

the second prong of the jurisdictional test has not been

met. It must be remembered that there are two separate

and distinct contracts involved in this litigation. The

foreign plaintiffs are suing the Pennsylvania defendants on

an alleged breach of contract and warranties due to the

methylene chloride’s contamination upon delivery. The

second contract, the focus of the instant jurisdictional con-

troversy, was negotiated and entered into by and between

Kingsley Canada and Trimble Canada. This contract con-

templated two shipments of methylene chloride. The first

shipment to be picked up by Trimble Canada in Indian-

apolis, Indiana, the second shipment to be picked up by

Trimble Canada in Pennsylvania. The mere fact that the

7 The Superior Court in its opinion emphasized in its cited

cases distinctions between actions in assumpsit and actions in

trespass. We believe that the analysis of whether minimum con-

tacts exist is to be determined solely on the basis of those facts

tending to establish the required relationships between the non-

resident defendant's activities, the cause of action and the forum

Although the facts as averred in a contract action may be differ-

ent than those averred in a tort action, it cannot be said that an

alternative standard of minimum contacts is required in one as

opposed to the other. See, 6.9. D. Currie, The Growth of the

Long Arm: Eight Years of Extended Jurisdiction in Illinois,

1963 U. Ill. L.F. 533. ‘To vary the minimum contacts needed

for jurisdiction according to the character of the suit would lead

plaintiff into disingenuous manipulation of their pleadings, and

it would plunge the courts into ever more difficult refinements

of the categories.’’ Vencedor Mfg. Co., Inc. v. Gougler Indus-

tries, 537 F.2d 886, 894 (1st Cir. 1977).

14a

Opinion, Supreme Court of Pa.

contract caused one of the shipments to be picked up in

Pennsylvania, absent an allegation that the breach oc-

curred during the sojourn in Pennsylvania, fails to meet

the requisite contact under this prong of the test. Nor can

this deficiency be ignored simply because appellees are un-

able to determine where the breach occurred.

Standing alone, the mere contemplation under the

terms of the contract of partial performance in the forum

state does not provide that state with a significant interest

in the litigation. Similarly, the instant case is not one

wherein the state has a manifest interest in providing ef-

fective means of redress for its residents. McGee v. In-

ternational Life Ins., supra. Thus having concluded that

the second prong of the test has not been met, we need not

inquire into the third prong.

However, even when the three pronged test cannot

be satisfied, jurisdiction, nevertheless, may be found where

the nonresident’s activities in the forum state are “so con-

tinuous and substantial as to make it reasonable’”’ to re-

quire the non-resident defendant to submit to the jurisdic-

tion of the Pennsylvania courts. Bork v. Mills, 458 Pa.

228, 232, 329 A.2d 247, 249 (1974); see also Kenny v.

Alexson Equipment Co., supra. The record discloses that

except for the single entry into Pennsylvania, Trimble

Canada has had absolutely no contacts, ties or relations

within this Commonwealth. In the absence of facts show-

ing Trimble Canada’s activities in Pennsylvania to be con-

tinuous and substantial, jurisdiction over appellant,

Trimble Canada may not be asserted consistent with due

process.

15a

Opinion, Supreme Court of Pa.

Accordingly, the Order of the Superior Court should

be reversed and the complaint against appellant Trimble

Canada dismissed.

McDERMOTT and HUTCHINSON, JJ., join in this

opinion.

16a

Opinion, Superior Court of Pa., June 26, 1981

KINGSLEY AND KEITH (CANADA) LIMITED and

Kingsley and Keith Chemical Corporation

Vs

MERCER INTERNATIONAL CORPORATION and In-

terstate Chemical Corporation and H. M. Trimble & Sons,

Limited

Appeal of H.M. TRIMBLE & SONS, LIMITED

SUPERIOR COURT OF PENNSYLVANIA

Argued Nov. 13, 1979

Filed June 26, 1981

Reargument Denied Oct. 9, 1981

Petition for Allowance of Appeal

Granted Dec. 22, 1981

[291 Pa. Superior Ct. 96, 435 A.2d 585]

Before SPAETH, HOFFMAN and VAN der VOORT,

JJ.

SPAETH, Judge:

This case, one of a trilogy of long-arm jurisdiction

cases,’ is an appeal from an order granting a petition by

1 The other cases are The Union National Bank of Pittsburgh

». L.D. Pankey Institute, 284 Pa. Super. 537, 426 A.2d 624 (1980),

and Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa. Super.

544, 426 A.2d 628 (1980). Originally all three cases were de-

cided and filed together, but upon application in this case, we

granted reconsideration.

17a

Opinion, Superior Court of Pa., June 26, 1981

Kingsley and Keith (Canada), Limited, and Kingsley and

Keith Chemical Corporation for leave to serve an amended

complaint in assumpsit on H.M. Trimble and Sons, Lim-

ited, by registered mail to Trimble’s headquarters in

Canada.

fi

For the purposes of our inquiry, we shall accept as

true the well-pleaded facts in the amended complaint. Cf.

Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183

(1966)... So regarded, the amended complaint may be

summarized as follows.

In 1974. one Canadian corporation, Celanese (Can-

ada) , Limited, ordered approximately 80,000 Ibs. of meth-

ylene chloride from another Canadian corporation, Kings-

2 The authority for this service may be found in Pa. R. Civ.

P.. R. 2180(c), which provides:

If service cannot be made under any of the methods set

forth in subdivision (a) or (b) of this rule, the court upon

petition shall authorize service by registered mail directed

to the Secretary of the Commonwealth and to the corporation

or similar entity at its last registered address or principal

place of business, or by publication as the court may direct.

3In other words, Trimble’s argument that the petition for

leave to serve it should not have been granted is functionally

equivalent to a defendant's argument that its preliminary objec-

tions to the complaint should be sustained. In both cases the

assertion is that the complaint itself discloses that the action may

not be maintained. <A party making this assertion must take the

complaint at face value. In this regard, it may be noted that the

original complaint named Trimac Limited, as a defendant, Tri-

mac Limited is Trimble’s parent company. When it filed pre-

liminary objections, 4s amended complaint was filed, naming

Trimble instead of Trimac Limited as a defendant.

18a

Opinion, Superior Court of Pa., June 26, 1981

ley and Keith (Canada), Limited. Kingsley and Keith

(Canada) ordered the methylene chloride from Kingsley

and Keith Chemical Corporation, a New Jersey corpora-

tion, which in turn ordered two tanks of methylene chlo-

ride (approximately 40,000 Ibs. each) from Mercer Inter-

national Corporation, a Pennsylvania corporation. Kings-

ley and Keith (Canada) then arranged with H. M. Trim-

ble and Sons, Limited, a Canadian corporation, to have

the tanks transported to Canada. In October 1974, Inter-

state Chemical Corporation, a Pennsylvania corporation

and an affiliate of Mercer International Corporation, sent

one tank truck of the methylene chloride to Indianapolis,

for transferral there to a Trimble tank truck. In Novem-

ber 1974, Interstate sent another tank truck of the methy-

lene chloride to Mercer, Mercer County, Pennsylvania, for

transferral there to a Trimble tank truck. Trimble de-

livered both tank loads to Celanese (Canada) , but Celanese

rejected them because the methylene chloride was con-

taminated. Kingsley and Keith (Canada) and Kingsley

and Keith (New Jersey) thereupon brought the present

action in Mercer County against Mercer International,

Interstate, and Trimble. Generally stated, the allegation

is that Mercer International, Interstate, and Trimble were

obliged to deliver good methylene chloride to the two

Kingsley and Keiths, so that the two Kingsley and Keiths

could deliver it to Celanese, but instead delivered con-

taminated methylene chloride.

While all this seems complicated, it really is not.

Plainly, both Mercer International and Interstate, as Penn-

sylvania corporations, may be sued in Pennsylvania, and

no one contends otherwise; the issue is whether Trimble,

a Canadian corporation, may be. This issue may be stated

19a

Opinion, Superior Court of Pa., June 26, 1981

as follows: When a Canadian common carrier (Trimble)

contracts with another Canadian corporation (Kingsley

and Keith) (Canada) to pick up one load of methylene

chloride in Indiana and another load in Pennsylvania, and

delivers both loads in Canada to a third Canadian corpo-

ration, does it acquire sufficient minimum contacts with

Pennsylvania to render it amenable to suit in Pennsylvania

in an action in which breach of the contract of carriage is

alleged and in which the Pennsylvania sellers of both loads

of methylene chloride are also defendants?

Answers to interrogatories revealed the following.

Trimble did not receive a bill of lading from Mercer Inter-

national, although it should have been the delivery carrier

designated on the bill of lading. Trimble did not have

authority either from the Pennsylvania Public Utility Com-

mission or the Interstate Commerce Commission to pick

up or deliver goods in Pennsylvania; the authority under

which the methylene chloride was picked up in Pennsyl-

vania was a “‘trip-lease’’ between Coastal Tanklines Lim-

ited and Trimble. Prior to the transactions involved here,

Mercer International and Interstate had not requested or

paid for Trimble’s services, nor had they had any business

relationship with Trimble.

4.

Before a court in this state may exercise jurisdiction

over Trimble, it must appear that Trimble’s conduct was

within the provisions of this state’s long-arm statute, and

that application of the statute to Trimble would not vio-

late the due process clause of the Fourteenth Amendment

of the United States Constitution. Monroeville Land Co.,

Inc. v. Sonnenblick-Goldman Corp. of Western Pa., 247

20a

Opinion, Superior Court of Pa., June 26, 1981

Pa. Super. 61, 371 A.2d 1326 (197); Action Industries,

Inc. v. Wiedeman, 236 Pa. Super. 447, 346 A.2d 798

(1975). The long-arm statute in effect at the time this ac-

tion was instituted‘ provided in pertinent part:

Any foreign corporation which shall have done

any business in this Commonwealth without procur-

ing a certificate of authority to do so from the De-

partment of State as required by statute, shall be con-

clusively presumed to have designated the Depart-

ment of State as its true and lawful attorney autho-

rized to accept, on its behalf, service of process in any

action arising within this Commonwealth. Service

of process shall be made in the manner provided by

section 8307 of this title (relating to procedure for

service of process).

* ” x « x « « =

(a) General rule-—Any of the following shall

constitute ‘doing business” for the purposes of this

chapter:

4 Act of Nov. 15, 1972, P.L. 1063, No. 271, 42 Pa. C.S.A

§§8301-8309 (Purdon’s Supp. 1976), repealed by, Act of July 9,

1976, P.L. 586, No. 142, §1, effective June 27, 1978, 42 Pa. C.S.A.

§§5301-5329 (Purdon’s 1979 Pamphlet). The complaint in this

case was filed on April 26, 1978, prior to the effective date of

the repeal of the Act of Nov. 15, 1972, P.L. 1063, No. 271. It is

clear that

|W hile substantive rights are settled as of the time the

cause arises, rights in procedural matters, such as jurisdie-

tion and service of process, are determined by the law in

foree at the time of the institution of the action. Kilian vr.

Allegheny County Distributors, 409 Pa. 344, 350, 351, 185

A.2d 517, 520 (1962).

21a

Opinion, Superior Court of Pa., June 26, 1981

(1) The doing by any person in this Common-

wealth of a series of similar acts for the purpose of

thereby realizing pecuniary benefit or otherwise ac-

complishing an object.

(2) The doing of a single act in this Common-

wealth for the purpose of thereby realizing pecuniary

benefit or otherwise accomplishing an object with the

intention of initiating a series of such acts.

(3) The shipping of merchandise directly or

indirectly into or through this Commonwealth.

(4) The engaging in any business or profes-

sion within this Commonwealth, whether or not such

business requires license or approval by the Com-

monwealth or any of its agencies.

(5) The ownership, use or possession of any

real property situate within this Commonwealth.

(b) Exercise of full constitutional power over

foreign corporations.—In addition to the provisions

of subsection (a) of this section the jurisdiction and

venue of courts of the Commonwealth shall extend to

all foreign corporations and the powers exercised by

them to the fullest extent allowed under the Constitu-

tion of the United States.

Act of Nov. 15, 1972, P.L. 1063, No. 271, 42 Pa.

C.S.A. §§8302(a), 8309 (Purdon’s Supp. 1976).

Since the statute makes this state’s jurisdiction over a

foreign corporation co-extensive with the permissible limits

of jurisdiction under the due process clause of the federal

22a

Opinion, Superior Court of Pa., June 26, 1981

constitution, a determination of the constitutional issue

will be dispositive. Hart v. McCollum, 249 Pa. Super.

267, 271-72, 376 A.2d 644, 647 (1977).

The United States Supreme Court has siated that for

a state to have jurisdiction over an out-of-state defendant,

there must be ‘‘certain minimum contacts . . . such that

the maintenance of the suit does not offend ‘traditional

notions of fair play and substantial justice.’”’ Interna-

tional Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct.

154, 158, 90 L.Ed. 95 (1945) (citations omitted). In

Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,

1239, 2 L.Ed. 2d 1283 (1958), the Court stated that “‘it

is essential in each case that there be some act by which

the defendant purposefully avails itself of the privilege of

conducting activities within the forum state, thus invoking

the benefits and protections of its laws.’ In World-Wide

Volkswagen Corporation v. Woodson, 444 U.S. 286, 100

S.Ct. 559, 62 L.Ed. 2d 490 (1980), the Court described

the concept of ‘“‘minimum contacts’ as “protect[ing] the

defendant against the burdens of litigating in a distant or

inconvenient forum. And it acts to ensure that the States,

through their courts, do not reach beyond the limits im-

posed on them by their status as coequal sovereigns in a

federal system.”’ Jd. at 292, 100 S.Ct. at 564. The Court

also commented on the concept of “reasonableness” or

“fairness” embodied in the requirement that a state’s juris-

diction “[must] not offend ‘traditional notions of fair

play and substantial justice,’ "’ stating:

Implicit in this emphasis on reasonableness is the

understanding that the burden on the defendant, while

always a primary concern, will in an appropriate case

23a

Opinion, Superior Court of Pa., June 26, 1981

be considered in light of other relevant factors, in-

cluding the forum State’s interest in adjudicating the

dispute, see McGee v. International Life Ins. Co., 355

U.S. 220, 223 [78 S.Ct. 199, 201, 2 L.Ed. 2d 223]

(1957); the plaintiff's interest in obtaining conve-

nient and effective relief, see Kulko v. Superior Court,

[436 U.S. 84, 92 [98 S.Ct. 1690, 1697, 56 L.Ed. 2d

132] (1978) ], at least when that interest is not ade-

quately protected by plaintiff's power to choose the

forum, cf. Sh@#ffer v. Heitner, 433 U.S. 186, 211 n. 37

[97 S.Ct. 2569, 2583, n. 37, 53 L.Ed. 2d 683]

(1977); the interstate judicial system’s interest in

obtaining the most efficient resolution of contro-

versies; and the shared interest of the several states

in furthering fundamental substantive social policies,

see Kulko v. Superior Court, supra, at 93, 98 [98

S.Ct. at 1697, 1700].

Id.

Finally, the Court stated:

When a corporation ‘purposefully avails itself of the

privilege of conducting activities within the forum

State,’ Hanson v. Denckla, supra at 253 [78 S.Ct. at

1239-1240], it has clear notice that it is subject to suit

there, and can act to alleviate the risk of burdensome

litigation by procuring insurance, passing the expected

costs on to customers, or, if the risks are too great,

severing its connection with the State.

Id. at 297, 100 S.Ct. at 567.

On the basis of decisions by the United States Su-

preme Court, this court, in Proctor & Schwartz, Inc. v.

24a

Opinion, Superior Court of Pa., June 26, 1981

Cleveland Lumber Co., 228 Pa. Super. 12, 19, 323 A.2d

11, 15 (1974), has formulated a three-part test:°

First, the defendant must have purposefully availed

itself of the privilege of acting within the forum state

thus invoking the benefits and protections of its laws.

Hanson v. Denckla, supra. Secondly, the cause of

action must arise from defendant's activities within

the forum state. See Southern Mach. Co. v. Mohasco

Indus., Inc., 401 F.2d 374 (6th Cir. 1968); Electric

Regulator Corp. v. Sterling Extruder Corp., 280 F.

Supp. 550 (D. Conn. 1968). Lastly, the acts of the

defendent must have a substantial enough connection

with the forum state to make the exercise of jurisdic-

tion over it reasonable. /nternational Shoe Co. v.

Washington, supra; see Southern Mach. Co. v. Mo-

hasco Indus., Inc., supra [401 F.2d 374 (6th Cir.

1968) ]; see also In-Flight Devices Corp. v. Van

Dusen Air, Inc.. 466 F.2d 220 (6th Cir. 1972);

Kourkene v. American BBR, Inc., 313 F.2d 769 (9th

Cir. 1963).

5 This test was formulated prior to four recent United States

Supreme Court decisions: Rush v. Savchuk, 444 U.S. 320, 100

S.Ct. 571, 62 L.Ed. 2d 516 (1980); World-Wide Volkswagen

Corporation v. Woodson, supra; Kulko v. Superior Court, supra;

and Shaffer v. Heitner, supra. However, since the Court’s com-

ments in World-Wide Volkswagen suggest that the Court’s earlier

decisions retain their validity, it is unnecessary to reformulate the

test.

25a

Opinion, Superior Court of Pa., June 26, 1981

And see Bev-Mark, Inc., d/b/a Tuboy Trucking Company,

et al. v. Summerfield GMC Truck Co., Inc., et al., 268 Pa.

Super. 74,407 A.2d 443 (1979).

al

—_—a—

There can be no question but that the first part of

the Proctor & Schwartz test has been met. Trimble en-

tered into a contract that contemplated Trimble’s per-

formance in Pennsylvania, and pursuant to that contract

Trimble entered Pennsylvania. In Koenig v. International

Brotherhood of Boilermakers, Iron Ship Builders, Black-

smiths, Forgers and Helpers, AFL-CIO, 284 Pa. Super.

558, 426 A.2d 635 (1980), we extensively discussed the

circumstances in which a nonresident defendant “purpose-

fully avail{s] itself of the privilege of acting within

[Pennsylvania]” when it enters into a contract. We held

that a critical factor is the contemplation of the parties

concerning the place of performance of the contract. Here,

it was contemplated that Trimble would enter Pennsyl-

vania to pick up one of the loads of methylene chloride

from a Pennsylvania seller. Trimble could not have ful-

filled its contract without entering Pennsylvania; it did

not, for example, merely pass through Pennsylvania be-

cause it chose one route rather than another.

sealiiain

The question whether the second part of the Proctor

& Schwartz test has been met requires more discussion.

Appellee has not claimed that the contamination of the

methylene chloride took place in Pennsylvania but only

that it might have taken place here.

26a

Opinion, Superior Court of Pa., June 26, 1981

—]—

We begin our analysis by recognizing that this is an

assumpsit action, as was Proctor & Schwartz.” In Proctor

& Schwartz we said:

The second analytical step requires only that the

cause of action arise from the defendant’s activities

within the forum state. The mere fact that the de-

fendant availed itself of the privilege of doing busi-

ness in Pennsylvania will not support a cause of ac-

tion which is unrelated to the defendant’s activities

in this state. We find in the instant case that the

plaintiff's cause of action arose directly from the de-

fendant’s acts within this state. The activity which

satisfies the ‘‘purposefully availed” test above is the

entering into contractual obligations. The cause of

action arises from the breach of those same obliga-

tions.

228 Pa. Super. at 20, 323 A.2d at 15.

The Michigan Court of Appeals has held that “[i]t is suf-

ficient for purposes of due process that the suit be based

On a contract which had a substantial connection with the

state of the forum. A single transaction may be sufficient

to meet the ‘minimum contacts’ test.” Shepler v. Korkut,

*In our original opinion in this case we did not give proper

recognition to this aspect of the case. We held that to meet the

second part of the Proctor & Schwartz test it was necessary that

some connection between Trimble’s activities in Pennsylvania and

the contamination of the methylene chloride must be averred be-

fore longarm jurisdiction could be asserted over Trimble. For

the reasons explained in the text, infra, we have concluded that

this was not the proper way of stating the second part of the

Proctor & Schwartz test in an action for breach of a contract.

27a

Opinion, Superior Court of Pa., June 26, 1981

33 Mich. App. 411, 415, 190 N.W.2d 281, 283 (1971).

See also, Central Insurance Agency Co., Inc. v. Financial

Credit Corp., 222 F. Supp. 627 (D.D.C. 1963).

In contrast, in actions in trespass the courts have

focused on where the injury took place. Thus in the lead-

ing Pennsylvania case of Bork v. Mills, 458 Pa. 228, 329

A.2d 247 (1974), our Supreme Court held that although

a Maryland defendant had done business in Pennsylvania,

the business was not so continuous or substantial as to

make him subject to suit in Pennsylvania in connection

with an automobile accident that had occurred in Virginia.

There was no claim in Bork that the plaintiff or the acci-

dent had any connection with the defendant’s business

activities in Pennsylvania. See also, Whalen v. Walt Dis-

ney World Co., 274 Pa. Super. 246, 418 A.2d 389 (1980) ;

Lubkuecher v. Loquasto, 255 Pa. Super. 608, 389 A.2d

143 (1978); Garfield v. Homowack Lodge, Inc., 249 Pa.

Super. 392, 378 A.2d 351 (1977).

a

One of the cases relied on by the lower court in this

case is Dornbos v. Kroger Company, 9 Mich. App. 515,

157 N.W.2d 498 (1968), appeal dismissed sub nom.

Adkins Transfer Company, Inc. v. Dornbos, 393 U.S. 322,

89 S.Ct. 555, 21 L.Ed. 2d 516 (1969).’ In Dornbos the

Michigan Court of Appeals sustained long-arm jurisdiction

over an out-of-state common carrier that had transported

7 Although the plaintiff in Dornbos alleged negligence by the

defendants, and to that extent at least the case sounded in tort,

the court's analysis of the propriety of the exercise of long-arm

jurisdiction focused on the contractual relationships among the

parties.

28a

Opinion, Superior Court of Pa., June 26, 1981

a load of fish from Chicago to Tennessee. The fish had

been sold by the Michigan plaintiff to a buyer in Tennessee

and had been transported from Michigan to Chicago by

a Michigan carrier that did not contest jurisdiction. In

affirming, the Court of Appeals adopted much of the

lower court’s opinion, including the following:

These defendants are in the business of carrying

goods in interstate commerce. It is reasonable to

assume that they solicit and hopefully anticipate such

business. They are in the position of being able to

protect themselves from the consequences of their own

derelictions. They understand that the nature of

their business requires them to have the care and

custody of the products and possessions of residents

of other states.

9 Mich. App. at 520, 157 N.W.2d at 501.

In Dornbos it was certain that any contamination for which

the out-of-state carrier might be found responsible could

not have taken place in Michigan because the carrier did

not receive the fish until it picked up the fish in Chicago.

Appellant tries to distinguish Dornbos as well as

Shepler v. Korkut, supra, by arguing that in those cases

the forum state recognized that it was providing a means

of redress for its residents. Language to the same effect

may be found in Pennsylvania cases. E. g., Action In-

dustries, Inc. v. Wiedeman, supra. However, this court

has explicitly held that the fact that a party seeking to as-

sert jurisdiction over a nonresident corporation is itself a

nonresident does not affect the scope of our jurisdiction.

Washington v. U. S. Suzuki Motor Corp., 257 Pa. Super.

482, 390 A.2d 1339 (1978).

29a

Opinion, Superior Court of Pa., June 26, 1981

As we read it, the second part of the Proctor & Sch-

wartz test may be satisfied by pleading a contract having

a significant connection with Pennsylvania, see Koenig v.

International Brotherhood of Boilermakers, supra, and a

breach of that contract. We recognize that it may be

argued that this is too broad a reading. However, we be-

lieve the proper approach, once a contract that has a

significant connection with Pennsylvania and its breach

have been pleaded, is to move on to the third part of the

test. This approach not only gives effect of the language

of Proctor & Schwartz describing the second part of the

test but also is consistent with our statement there that

the third part of the test is actually the most significant,

228 Pa. Super. at 20, 323 A.2d at 16.

—_

The focus of the third part of the Proctor & Schwartz

test is on whether “the exercise of jurisdiction in this par-

ticular case [would] be fair and reasonable under the cir-

cumstances.” /d., 323 A.2d at 16. As previously noted,

the determination of whether an exercise of jurisdiction

is reasonable depends on the burden that would be imposed

on the defendant, in light of several factors, including the

forum state’s interest in resolving the dispute; the plain-

tiff’s interest in obtaining convenient and effective relief;

the interstate judicial system's interest in the most efficient

resolution of the controversy; and the interest of the

several states in furthering substantive social policies.

World-Wide Volkswagen Corporation vy. Woodson, supra

at 292, 100 S.Ct. at 564. Here Trimble will be incon-

venienced by having to defend in this state, but this is not

enough to counterbalance the factors favoring jurisdiction.

30a

Opinion, Superior Court of Pa., June 26, 1981

See, e. g., Action Indust,, Inc. y. Wiedeman, supra, This

state has an interest in ensuring that contracts affecting

its domiciliaries, Mercer International and Interstate, were

not breached, and in safeguarding the transport of chem-

icals over its highways. Also, since all the other defend-

ants are here, the entire case could be resolved in one trial,

It is easy to imagine a case in which the breach of

a contract that had a significant connection with Pennsyl-

vania would be sufficient to meet the first two parts of

the Proctor & Schwartz test but not the third. This case,

for example, would be quite different if Trimble were the

only defendant. Thus it illustrates the importance of all

three parts of the Proctor & Schwartz test in determining

whether the exercise of long-arm jurisdiction is consistent

with the requirements of fairness and due process as inter-

preted through the years by the United States Supreme

Court in the line of cases represented most recently by

World-Wide Volkswagen Corporation v. Woodson, supra,

and Rush v. Savchuk, supra.

Affirmed.

3la

Opinion, Superior Ct. of Pa., Oct. 24, 1980

KINGSLEY AND KEITH (CANADA)

LIMITED and Kingsley and Keith

Chemical Corporation

Vv.

MERCER INTERNATIONAL CORPORATION and

Interstate Chemical Corporation and H. M. Trimble &

Sons, Limited.

Appeal of H. M. TRIMBLE &

SONS, LIMITED.

SUPERIOR COURT OF PENNSYLVANIA.

Argued Nov. 13, 1979.

Filed Oct. 24, 1980.

Before SPAETH, HOFFMAN and VAN der VOORT,

ne

SPAETH, Judge:

This case is one of three long-arm jurisdiction cases

that we decide today;' it is an appeal from an order grant-

ing a petition by Kingsley and Keith (Canada), Limited,

and Kingsley and Keith Chemical Corporation for leave

to serve an amended complaint in assumpsit on H. M.

'The other cases are; The Union National Bank of Pitts-

burgh, Erec'r v. L. D. Pankey Institute, et al., Pa. Super.

, 426 A2d 624 (1980); Goff v. Armbrecht Motor Truck Sales,

Inc. et al. Pa. Super. , 426 A.2d 628 (1980).

32a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

Trimble and Sons, Limited, by registered mail to Trimble’s

headquarters in Canada.”

For the purposes of our inquiry, we shall accept as

true the well-pleaded facts in the amended complaint. Cf.

Frisch v. Alexson Equip. Corp., 423 Pa. 247, 224 A.2d 183

(1966) .° So regarded, the amended complaint may be

summarized as follows.

In 1974, one Canadian corporation, Celanese (Can-

ada) , Limited, ordered approximately 80,000 Ibs. of meth-

ylene chloride from another Canadian corporation, Kings-

ley and Keith (Canada), Limited. Kingsley and Keith

(Canada) then ordered the methylene chloride from Kings-

ley and Keith Chemical Corporation, a New Jersey cor-

poration, which in turn ordered two tanks of methylene

* The authority for this service may be found in Pa. R.Civ.

P., R. 2180(c), which provides:

If service cannot be made under any of the methods set

forth in subdivision (a) or (b) of this rule, the court upon

petition shall authorize service by registered mail directed to

the Secretary of the Commonwealth and to the corporation or

similar entity at its last registered address or principal place

of business, or by publication as the court may direct.

%In other words, Trimble’s argument that the petition for

leave to serve it should not have been granted is functionally

equivalent to a defendant’s argument that its preliminary ob-

jections to the complaint should be sustained, in both cases the

assertion is that the complaint itself discloses that the action may

not be maintained. A party making this assertion must take the

complaint at face value. In this regard, it may be noted that the

original complaint named Trimac Limited, as a defendant. Tri-

mac Limited is Trimble’s parent company. When it filed pre-

liminary objections, an amended complaint was filed, naming

Trimble instead of Trimac Limited as a defendant.

—

—

33a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

chloride (approximately 40,000 Ibs. each) srom Mercer

International Corporation, a Pennsylvania corporation, and

arranged with H. M. Trimble and Sons, Limited, a Ca-

nadian corporation, to have the tanks transported to Can-

ada. In October 1974, Interstate Chemical Corporation, a

Pennsylvania corporation and an affiliate of Mercer Inter-

national Corporation, sent one tank truck of the methylene

chloride to Indianapolis, for transferral there to a Trimble

tank truck. In November 1974, Interstate sent another

tank truck of the methylene chloride to Mercer, Mercer

County, Pennsylvania, for transferral there to a Trimble

tank truck. Trimble delivered both tank loads to Celanese

(Canada) , but Celanese rejected them because the methy-

lene chloride was contaminated. Kingsley and Keith (Can-

ada) and Kingsley and Keith (New Jersey) thereupon

brought the present action in Mercer County against Mercer

International, Interstate, and Trimble. Generally stated,

the allegation is that Mercer International, Interstate, and

Trimble were obliged to deliver good methylene chloride

to the two Kingsley and Keiths, so that the two Kingsley

and Keiths could deliver it to Celanese, but instead, de-

livered contaminated methylene chloride.

While all this seems complicated, it really is not.

Plainly, both Mercer International and Interstate, as Penn-

sylvania corporations, may be sued in Pennsylvania, and

no one contends otherwise; the issue is whether Trimble,

a Canadian corporation, may be. This issue may be stated

as follows: When a Canadian corporation (Trimble)

picks up one load of methylene chloride in Indiana and

another load in Pennsylvania, and delivers both loads to

Canada, all in fulfillment of a contract between two other

Canadian corporations (Celanese and Kingsley and Keith

34a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

(Canada) ), does it acquire sufficient minimum contacts

with Pennsylvania to render itself amenable to the juris-

diction of a Pennsylvania court?

Answers to interrogatories revealed the follow-

ing. Trimble did not receive a bill of lading from Mercer

International, although it should have been the delivery

carrier designated on the bill of lading. Trimble did not

have authority either from the Pennsylvania Public Utility

Commission or the Interstate Commerce Commission to

pick up or deliver goods in Pennsylvania; the authority

under which the methylene chloride was picked up in

Pennsylvania was a “trip-lease”’ between Coastal Tank-

lines Limited and Trimble. Prior to the transactions

involved here, Mercer International and Interstate had not

requested or paid for Trimble’s services, nor had they had

any business relationship with Trimble. Before a court

in this state may exercise jurisdiction over Trimble, it

must appear that Trimble’s conduct was within the pro-

visions of this state’s long-arm statute, and that application

of the statute to Trimble would not violate the due process

clause of the Fourteeth Amendment of the United States

Constitution. Monroeville Land Co., Inc. y. Sonnenblick-

Goodman Corp. of Western Pa., 247 Pa. Super. 61, 371

A.2d 1326 (1977); Action Industries, Inc. y. Wiedeman,

236 Pa. Super. 447, 346 A.2d 798 (1975). The long-

arm statute in effect at the time this action was instituted‘

provided in pertinent part:

* Act of Nov. 15, 1972, P.L. 1063, No. 271, 42 P.S. §§8301-

8309 (Purdon’s Supp. 1976), repealed by, Act of July 9, 1976,

P.L. 586, No. 142, 81, effective June 27, 1978, 42 Pa. C.S.A.

$§5301-5329 (Purdon’s 1979 Pamphlet). The complaint in this

case was filed on April 26, 1978, prior to the effective date of the

35a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

Any foreign corporation which shall have done

any business in this Commonwealth without pro-

curing a certificate of authority to do so from the De-

partment of State as required by statute, shall be con-

clusively presumed to have designated the Depart-

ment of State as its true and lawful attorney au-

thorized to accept, on its behalf, service of process in

any action arising within this Commonwealth. Service

of process shall be made in the manner provided by

section 8307 of this title (relating to procedure for

service of process) .

= = x * * = *

(a) General rule—Any of the following shall

constitute “doing business’’ for the purposes of this

chapter:

(1) The doing by any person in this Common-

wealth of a series of similar acts for the purpose of

thereby realizing pecuniary benefit or otherwise ac-

complishing an object.

(2) The doing of a single act in this Common-

ealth for the purpose of thereby realizing pecuniary

L efit or otherwise accomplishing an object with the

int ntion of initiating a series of such acts.

(3) The shipping of merchandise directly or

indirectly into or through this Commonwealth.

repeal of the Act of Nov. 15, 1972, P.L. 1063, No. 271. It is clear

that [while substantive rights are settled as of the time the

cause arises, rights in procedural matters, such as jurisdiction

and service of process, are determined by the law in force at the

time of the institution of the action. Killian v. Allegheny County

Distributors, 409 Pa. 344, 350, 351, 185 A.2d 517, 520 (1962).

36a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

(4) The engaging in any business or profession

within this Commonwealth, whether or not such busi-

ness requires license or approval by the Common-

wealth or any of its agencies.

(5) The ownership, use or possession of any

real property situate within this Commonwealth.

(b) Exercise of full constitutional power over

foreign corporation.—In addition to the provisions of

subsection (a) of this section the jurisdiction and

venue of courts of the Commonwealth shall extend

to all foreign corporations and the powers exercised

by them to the fullest extent allowed under the Con-

stitution of the United States. Act of Nov. 15, 1972,

P.L. 1063, No. 271, 42 P.S. §§8302(a), 8309

(Purdon’s Supp. 1976).

Since the statute makes this state’s jurisdiction over a

foreign corporation co-extensive with the permissible lim-

its of jurisdiction under the due process clause of the

federal constitution, a determination of the constitutional

issue will be dispositive. Hart v. McCollum, 249 Pa.

Super. 267, 272, 376 A.2d 644, 647 (1977).

The United States Supreme Court has stated that for

a state to have jurisdiction over an out-of-state defendant,

there must be “‘certain minimum contacts .. . such that

the maintenance of the suit does not offend ‘traditional

notions of fair play and substantial justice.” /nterna-

tional Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.

Ct. 154, 158, 90 L.Ed. 95 (1945) (citations omitted).

In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228,

1239, 2 L.Ed. 2d 1283 (1958), the Court stated that “‘it

is essential in each case that there be some act by which

37a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

the defendant purposefully avails itself of the privilege of

conducting activities within the forum state, thus invoking

the benefits and protections of its law.” In World-Wide

Volkswagen Corporation et al. v. Charles S. Woodson,

District Judge of Creek County, Oklahoma, et al., 444

U.S. 286, 100 S.Ct. 559, 62 L.Ed. 2d 490 (1980), the

Court described the concept of “minimum contacts” as

“protect[ing] the defendant against the burdens of litiga-

ting in a distant or inconvenient forum. And it acts to

ensure that the States, through their courts, do not reach

beyond the limits imposed on them by their status as co-

equal sovereigns in a federal system.’’ At 292, 100 S.Ct.

at 564. The Court also commented on the concept of

“reasonableness” or “‘fairness’’ embodied in the require-

ment that a state’s jurisdiction “‘[must] not offend ‘tradi-

tional notions of fair play and substantial justice,’ ”’ stating:

Implicit in this emphasis on reasonableness is the

understanding that the burden on the defendant, while

always a primary concern, will in an appropriate case

be considered in light of other relevant factors, includ-

ing the forum State’s interest in adjudicating the dis-

pute, see McGee v. International Life Ins. Co., 355

U.S. 220, 223, [78 S.Ct. 199, 201, 2 L.Ed. 2d 223]

(1957); the plaintiff’s interest in obtaining con-

venient and effective relief, see Kulko v. Superior

Court, [436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56

L.Ed. 2d 132 (1978) ], at least when that interest is

not adequately protected by plaintiff's power to

choose the forum, cf. Shaffer v. Heitner, 433 US.

186, 211 n. 37, [97 S.Ct. 2569, 2583 n. 37, 53 L.Ed.

2d 683] (1977); the interstate judicial system’s in-

terest in obtaining the most efficient resolution of

38a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

controversies; and the shared interest of the several

States in furthering fundamental substantive social

policies, see Kulko v. Superior Court, supra, [436

U.S.] at 93, 98, [98 S.Ct. at 1698, 1700].

At 292, 100 S.Ct. at 564.

Finally, the Court stated:

When a corporation ‘purposefully avails itself of the

privilege of conducting activities within the forum

State,’ Hanson v. Denckla, supra, [357 U.S. 235] at

253, [78 S.Ct. at 1239], it has clear notice that it is

subject to suit there, and can act to alleviate the risk

of burdensome litigation by procuring insurance, pass-

ing the expected costs on to customers, or, if the risks

are too great, severing its connection with the State.

At 297, 100 S.Ct. at 567.

On the basis of decisions by the United States Su-

preme Court, this court, in Proctor & Schwartz, Inc. v.

Cleveland Lumber Co., 228 Pa. Super. 12, 19, 323 A.2d

11, 15 (1974), has formulated a three-part test:°

First, the defendant must have purposefully availed

itself of the privilege of acting within the forum state

® This test was formulated prior to four recent United States

Supreme Court decisions: Rush v. Sarchuk, 444 U.S. 320, 100

S.Ct. 571, 62 L.Ed. 2d 516 (1980); World-Wide Volkswagen

Corporation ct al. v. Charles 8. Woodson, District Judge of Creek

County, Oklahoma et al., supra; Kulko v. Superior Court, supra;

and Shaffer v. Heitner, supra. However, since the Court's com-

ments in World-Wide Volkswagen, discussed on pgs. and

of this opinion, suggest that the Court's earlier decisions retain

their validity, it is unnecessary to reformulate the test.

39a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

thus invoking the benefits and protections of its laws.

Hanson v. Denckla, supra. Secondly, the cause of

action must arise from defendant’s activities within

the forum state. See Southern Mach. Co. v. Mohasco

Indus., Inc., 401 F.2d 374 (6th Cir. 1968); Electric

Regulator Corp. v. Sterling Extruder Corp., 280 F.

Supp. 550 (D. Conn. 1968). Lastly, the acts of the

defendant must have a substantial enough connection

with the forum state to make the exercise of juris-

diction over it reasonable. International Shoe Co. v.

Washington, supra: see Southern Mach. Co. v.

Mohasco Indus., Inc., supra [401 F.2d 374 (6th Cir.

1968) ]; see also In-Flight Devices Corp. v. Van

Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972);

Kourkene v. American BBR, Inc., 313 F.2d 769 (9th

Cir. 1963).

And see Bev-Mark, Inc., d/b/a Tuboy Trucking Company,

et al. v. Summerfield GMC Truck Co., Inc., et al.,

Pa. Super. , 407 A.2d 443 (1979).

Application of the Proctor test to this case leads to

inconclusive results because there is not enough informa-

tion in the record to determine whether the second nart

of the test has been fulfilled, that is, whether the cause of

action arose from Trimble’s activities in this state.** The

amended complaint only alleges that Trimble picked up

5a The first part of the Proctor test has been fulfilled, for

Trimble ‘‘purposefully availed itself of the privilege of acting

within |Pennsylvania|"’, both by transporting methylene chloride

in this state, see text pgs. 10-11, and by entering into a contract

that contemplated Trimble’s performance within this state. In

Koenig et al. v. International Brotherhood of Boilermakers, Tron

40a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

the methylene chloride and transported it in this state and

that it was contaminated when it arrived in Canada. So

far as can be determined from the complaint, the con-

tamination could have occurred in Indiana, or Pennsyl-

vania, or Canada, or in any of the states in which the tank

trucks went on their way to Canada. Given this uncer-

tainty, we have considered whether to remand for further

proceedings. We have concluded, however, that remand

is unnecessary.

As the record stands now, it has not been shown that

the cause of action is related to Trimble’s activities in

Pennsylvania. Before a Pennsylvania court may exercise

jurisdiction over a foreign corporation on a cause of action

not related to the corporation’s activities in Pennsylvania,

it must appear that the corporation’s activities in Pennsyl-

vania were “continuous and substantial.” Bork v. Mills,

Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO et

al., Pa. Super. , 426 A.2d 635 (J. 2054/79, filed /

), we have extensively discussed the question of whether a non-

resident defendant ‘‘purposefully avail[s] itself of the privilege

of acting within [Pennsylvania]’’ when it enters into a contract

contemplating its own or the plaintiff's performance within this

state. In Koenig, a New York labor union entered into two em-

ployment contracts with two New York residents under which

the New York residents were required to make trips to Willow

Grove and other points in Montgomery County, Pennsylvania, to

organize employees and attend meetings as union trustees of the

Boilermakers Medical Plan. We held that the labor union’s en-

try into these contracts constituted a ‘‘purposeful!| avail[ment]

of the privilege of acting within [this state].’’ Koenig is dis-

tinguishable from the present case in that there, the record was

sufficient to show that the second part of the Proctor test had

also been met.

4la

Opinion, Superior Ct. of Pa., Oct. 24, 1980

458 Pa. 228, 329 A.2d 247 (1974);° The Union National

Bank of Pittsburgh, Exec’r v. L. D. Pankey Institute et al.,

supra; Whalen and Whalen v. Walt Disney World Com-

pany and Insurance Company of North America, Pa.

Super. , 418 A.2d 389 (1980); Lebkuecher v. Lo-

quasto, 255 Pa. Super. 608, 389 A.2d 143 (1978); Gar-

field v. Homowack Lodge, Inc., 249 Pa. Super. 392, 378

A.2d 351 (1977). The basis of the ‘“‘continuous and sub-

stantial activities” test is Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485

(1952). There, it was held that Ohio had properly exer-

cised jurisdiction over a foreign corporation even though

the cause of action was unrelated to the corporation’s ac-

tivities in Ohio; the activities were primarily those of the

corporation’s general manager and principal stockholder,

who held directors’ meetings, carried on company corre-

spondence, maintained two bank accounts for company

funds, and distributed salary payment and funds to cover

purchases of machinery. In Bork v. Mills, supra, this court

held that the plaintiff's uncontroverted assertion that the

defendant hauled freight for hire within this state was not

sufficient to meet the “continuous and substantial ac-

® The lower court distinguished Bork v. Mills, supra, on the

ground that here the cause of action is related to Trimble’s ac-

tivities in this state. As we have just observed, this may be so,

but whether it is so cannot be determined as the record now

stands. The lower court also stated that Bork was based on a

prior version of the long-arm statute. This statement, however,

fails to recognize the decisions of this court that have applied

Bork to subsequent versions of the long-arm statute. See Leb-

kuecher v. Loquasto, supra; Garfield v. Homowack Lodge, Inc.,

supra.

42a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

tivities” test. In Garfield v. Homowack Lodge, Inc.,

supra, this court held that the test was met where it ap-

peared that the defendant advertised in a Philadelphia

newspaper every week for approximately five years; spent

$2,000 annually for this advertising; maintained a toll-free

telephone number for Philadelphia area residents to make

reservations; and provided advertising brochures to several

Philadelphia travel agents to whom it paid a ten per cent

referral fee. In Lebkuecher v. Loquasto, supra, this court

held that the test was not met by showing only that the

defendant, a New Jersey physician, possessed a license to

practice medicine in this state and maintained a classified

listing in a telephone directory in this state. In Whalen

and Whalen v. Walt Disney World Company and Insur-

ance Company of North America, supra, this court held

that the test was not met where the defendant’s only un-

controverted contacts with this state were its purchases of

$1,551,725 in merchandise and liability insurance from

companies located or incorporated in this state. Finally,

in The Union National Bank of Pittsburgh Exec’r v. L. D.

Pankey Institute et al., supra, this court held that the test

was not met either as to a Florida dental! institute, which

had sent information packets to Pennsylvania residents

and bought a de minimis amount of supplies from Penn-

sylvania producers, or as to a Florida doctor, who was

listed in national medical directories distributed in Penn-

sylvania and had attended one convention here.

It is apparent that the evidence of Trimble’s one trip

to this state was not sufficient to meet the “continuous and

substantial activities” test. Accordingly, based on the

record as it now stands, we must reverse the lower court’s

order granting leave to serve Trimble.

43a

Opinion, Superior Ct. of Pa., Oct. 24, 1980

It should be noted, however, that notwithstanding

this holding, if it appears later in the proceedings below,

as the action proceeds against Mercer International and

Interstate, that Trimble’s transportation of the methylene

chloride did result in its contamination in Pennsylvania,

then Trimble would be amenable to service.” By trans-

porting the methylene chloride in this state, Trimble ‘“‘pur-

posefully availed itself of the privilege of acting within

[this state]. See e. g., Mackensworth v. American Trad-

ing Transportation Co., 367 F. Supp. 373 (E.D. Pa. 1973)

(owner of ship sent it to Pennsylvania to load freight once;

action by sailor for unpaid wages upheld). Through its

business here, Trimble has benefitted from this state’s ser-

vices and the protection of its laws. The fact that Trim-

ble’s involvement with this state was limited to a single

transportation contract is not dispositive. Thus juris-

diction has been upheld in the analogous situation of

where an out-of-state manufacturer ships only one order

™Trimble has argued otherwise, but the cases it cites are

readily distinguishable. Only two of the cases need be men-

tioned. In George Transport and Rigging Co. v. International

Publications Equipment Corp., 425 F. Supp. 1351 (E.D. Pa.

1977), the defendant never entered this state; its only contact

was a contract neither negotiated nor executed here, with the

plaintiff, a common carrier to transport goods; some of the goods

were transported by the carrier over Pennsylvania highways en-

route to Indiana and New York. In Ward v. Baltimore Steve-

doring Co., 437 F. Supp. 941 (E.D, Pa. 1977), the defendant, a

New York freight forwarder, prepared a bill of lading for cargo

to be transported from Baltimore to the Soviet Union. The fact

that the defendant had placed goods in the stream of commerce

where they might enter this state was held insufficient to justify

this state’s exercise of jurisdiction over defendant.

44a

Opinion, Superior Ct. of Pa., Oct, 24, 1980

of goods into this state. See Columbia Metal Culvert Co.,

Inc. v. Kaiser Industries, Inc., 526 F.2d 724 (3rd Cir.

1975); Acquarium Pharmaceuticals, Inc. vy. Industrial

Pressing and Packaging, Inc., 358 F. Supp. 441 (E.D. Pa.

1973). Accord Shepler v. Korkut, 33 Mich. App. 411,

190 N.W. 2d 281 (1970). Contra Pinna v. Davis, 67

A.D, 2d 967, 413 N.Y.S. 2d 460 (1979). Nor would such

an exercise of jurisdiction be unreasonable. .As previously

noted, the determination of whether an exercise of juris-

diction is unreasonable depends on the burden that would

be imposed on the defendant, in light of several factors,

including the forum state’s interest in resolving the dispute;

the plaintiff's interest in obtaining convenient and effective

relief; the interstate judicial system’s interest in the most

efficient resolution of the controversy; and the interest of

the several states in furthering substantive social policies.

World-Wide Volkswagen Corporation et al. v. Charles S.

Woodson, District Judge of Creek County, Oklahoma et al.,

supra, 444 U.S. at 292, 100 S.Ct. 564. Here, Trimble

would be inconvenienced by having to defend in this state,

but this would not be enough to counterbalance the factors

favoring jurisdiction. See, e. g., Action Indust., Inc. v.

Wiedeman, supra. This state has an interest in ensuring

that contracts affecting its domiciliaries, Mercer Inter-

national and Interstate, were not breached, and in safe-

guarding the transport of chemicals over its highways.

Also, since all the other defendants are here, the entire

case could be resolved in one trial.

The ORDER of the lower court is reversed, without

prejudice to appellees to produce evidence in further pro-

ceedings in the lower court to prove jurisdiction over ap-

pellant.

45a

Opinion, Court of Common Pleas

IN THE COURT OF COMMON PLEAS OF

MERCER COUNTY, PENNSYLVANIA

CIVIL

No. 725 C.D. 1977

Non-Vehicle

KINGSLEY AND KEITH (CANADA) LIMITED

and KINGSLEY AND KEITH CHEMICAL COR-

PORATION,

Plaintiffs

vs,

MERCER INTERNATIONAL CORPORATION

and INTERSTATE CHEMICAL CORPORATION

and H. M. TRIMBLE & SONS, LIMITED,

Defendants

Appearances

For the Plaintiff: Thomas T. Frampton, Attorney

at Law

For the Defendants, Mercer International Corpora-

tion and Interstate Chemical Corporation: M. L. McBride

and Timothy L. McNickle, Attorneys at Law

For the Defendant, H. M. Trimble & Sons, Limited:

P. Raymond Bartholomew, Attorney at Law

46a

Opinion, Court of Common Pleas

OPINION

ACKER, J.:

This opinion is written pursuant to the requirements

of Pennsylvania Rule of Appellate Procedure 1925. On

January 15, 1979, this Court entered an Order which

permitted service upon H. M. Trimble & Sons, Limited,

pursuant to the provisions of the Judicial Code, Act of

July 9, 1976, P.L. 586, No. 142, Section 2 [42 Pa. C.S.A.

5323] and so much of the Pennsylvania Rule of Civil

Procedure 2180(c) which is not inconsistent with the

Judicial Code. The order permitted service upon defend-

ant, H. M. Trimble & Sons, Limited, at 736 Eighth Ave-

nue, Southwest, Calgary, Alberta, Canada, by registered

mail, return receipt requested, through the Office of the

Sheriff of Mercer County. A motion for reconsideration

was denied on February 13, 1979.

Prior to the January 15, 1979 order testimony was

taken upon the petition to permit service, interrogatories

were served and answered, and stipulations were entered

into from which this Court concludes the following facts:

FINDINGS OF FACT

(1) Kingsley and Keith (Canada) Limited (herein-

after referred to as KKL) has its principal place of busi-

ness in Montreal, Canada. It received an order from

Celanese (Canada) Limited for 80,000 pounds of meth-

ylene chloride (hereinafter referred to as mc).

47a

Opinion, Court of Common Pleas

(2) KKL then ordered 80,000 pounds of me from

Kingsley and Keith Chemical Corporation (hereinafter

referred to as KKCC). KKCC is a New Jersey corpora-

tion having Englewood, New Jersey, as its principal place

of business,

(3) KKCC then ordered 80,000 pounds of me from

Mercer International Corporation (hereinafter referred to

as MIC). MIC is a Pennsylvania corporation having its

principal place of business at Mercer, Pennsylvania. In-

terstate Chemical Corporation is also a Mercer, Pennsyl-

vania, corporation, with Albert L. Puntureri serving as

president of both corporations, and for the purpose of this

opinion is the same entity as Mercer International Cor-

poration,

(4) KKL, through its Montreal office, entered into

a contract with Trimac Transportation, Limited, through

its Toronto office, for the delivery of mc to Celanese in

Canada.’

‘In its answer to the petition for service, Trimac described

the chain of transportation as follows:

KKL contracted with Oil and Industry Supplies, Limited, a

company owned by Stothert Holding, Limited, which in turn is

owned by Trimac Transportation, Limited, which in turn is a

subsidiary of Trimae Limited, There are eleven affiliate corpo-

rations within the Trimae Transportation system and H. M.

Trimble & Sons, Limited, is the corporation which actually ful-

filled the contract as to transportation as agreed through a

stipulation of the parties filed with this Court on October 31,

1978. By stipulation it was further agreed that any reference to

Trimac or Trimae Corporation system on any bills of lading or

any contract document shall be construed to mean H. M. Trimble

& Sons, Limited.

48a

Opinion, Court of Common Pleas

(5) H.M. Trimble & Sons (hereinafter referred to

as HMT&S) was to receive the me from the tank trucks

of Interstate Chemical Corporation.

(6) KKCC for KKL made the carrier arrangements

and requested that the first shipment be delivered to In-

dianapolis, Indiana while the second be picked up in

Mercer, Pennsylvania.

(7) HMT&S did not have authority to operate with-

in the State of Pennsylvania but was operating in the State

of Pennsylvania under the authority of Costal Tank Lines

Limited under a “trip lease’ basis with HMT&S.

(8) That on or about October 12, 1974, in Indi-

anapolis, Indiana, a tank truck of ICC delivered a truck

load of approximately 20,000 pounds of me to a tank

truck operated by HMT&S.

(9) That on or about November 12, 1974, in

Mercer, Pennsylvania, a tank truck of ICC delivered a tank

load of mc to a tank truck operated by HMT&S and leased

to Costal Tank Lines Limited.

(10) Celanese rejected a delivery of both tank

loads after learning upon inspection and testing that the

mc was contaminated.

(11) HMTA&S, the carrier, has no business relation-

ships or contacts touching the Commonwealth of Pennsyl-

vania other than the involvement with the me of this case

which was loaded onto its tank truck operated by HMT&S

Mercer, Pennsylvania, on or about November 12, 1974.

49a

Opinion, Court of Common Pleas

DISCUSSION

Former Chapter 83 of the Judicial Code, Sections

8301-8311, (added by Act of November 15, 1972, P.L.

1063, No. 271) [42 Pa. C.S.A. 8301 et seq.] was repealed

by the Act of July 9, 1976, P.L. 586, No. 142, Section 2

[Judiciary Act] effective June 27, 1978. It is acknowl-

edged that service cannot properly lie under Section 5301

of the Judiciary Act [42 Pa. C.S.A. 5301]. Rather, the

proper basis of personal jurisdiction for HMT&S is Section

5322 [42 Pa. C.S.A. 5322]. This section makes no

change in the substantive law and spells out “minimum

contacts”’,

“Exercise of full constitutional power over non-

residents. —In addition to the provisions of subsec-

tion (a) the jurisdiction of the tribunals of this

Commonwealth shall extend to all persons who are

not within the scope of section 5301 (relating to per-

sons) to the fullest extent allowed under the Con-

stitution of the United States and may be based on

the most minimum contact with this Commonwealth

allowed under the Constitution of the United States.”

Subsection (b) therefore deals with limited personal

jurisdiction. It is agreed that the conduct of the defendant,

HMTA&S must meet the minimum contact rule as announced

in International Shoe Company vs. State of Washington,

326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and more

recently declared in McGee vs. International Life Insurance

Company, 355 U.S. 220, 78 S.Ct. 199 (1957) and Hanson

vs. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958). The

minimum contact rule has of course been held to apply in

Pennsylvania. Proctor & Schwartz, Inc. vs. Cleveland

Lumber Company, 228 Pa. Super. Ct. 12, 323 A.2d 11

50a

Opinion, Court of Common Pleas

(1974) ; Garfield & Homowack Lodge, Inc. vs. Homowack

Lodge, Inc., 249 Pa. Super. Ct. 392, 378 A.2d 351

(1977) and Overseas National Airways, Inc. vs. Saloom,

52D. & C. 2d 22 (1971).

Section 5322(b) therefore eliminates the need to en-

gage in the type of dual-tiered analysis. Instead of

first determining whether a foreign corporation contacts

with the forum fall within the terms of the statute, Penn-

sylvania may now proceed directly to the constitutional

issue. George A. Davis, Inc. vs. Camp Trails Co., 447

F, Supp. 1304, 1313 (E.D. Pa. 1978).* The limits of

Pennsylvania adjudicating powers are found in /nterna-

tional Shoe, supra, and its progeny. The due process

inquiry focuses on the fairness of requiring the foreign de-

fendant to answer in Pennsylvania considering the impact

or lack thereof of his activities on that forum. General

Heat & Power vs. Diversified Mortgage Inv., 552 F.2d

556 (3rd Cir. 197%). In determining whether under a

particular factual situation a foreign corporation is doing

business the courts examine the cases on an ad hoc basis.

Swindell vs. Guyandotte Water & Sewer Development

Association, 425 F. Supp. 830 (W.D. Pa. 1977); Action

Industries, Inc. vs. Wiedeman, 236 Pa. Super. Ct. 447, 346

A.2d 798 (1975).

Pennsylvania’s Long-Arm Statute is expressly intended

to extend to the jurisdiction of the courts of this Common-

wealth to the fullest extent permissible by the Fourteenth

2In Inpaco Corp. vs. McDonald's Corp., 413 F. Supp. 415,

418 (E.D. Pa. 1976), it was held that although ‘‘doing business

triggers’’ in personam jurisdiction over foreign corporations,

Pennsylvania Long-Arm Statute is co-existent with substantive

jurisdiction through due process.

5la

Opinion, Court of Common Pleas

Amendment. Proctor & Schwartz, Inc. vs. Cleveland

Lumber Company, supra; M & N Meat Company ys.

American Boneless Beef Corporation, 380 F. Supp. 912

(W.D. Pa. 1974); Kitzinger vs. Gimbel Brothers, Inc.,

240 Pa. Super. Ct. 345, 368 A.2d 333 (1976); Crucible,

Inc. vs. Stora Kopparbergs Bergslags AB, 403 F. Supp. 9

(W.D. Pa. 1975).

Further, what may be regarded as fair play and sub-

stantial justice to an individual may not be the same as to

foreign corporations. Stepnowski vs. Avery, 234 Pa.

Super. Ct. 492, 340 A.2d 465 (1975).

Guidelines to aid in factual analysis necessary to

make the determination of whether the requisite “minimum

contacts” are present are set forth in Proctor & Schwartz,

Inc. vs. Cleveland Lumber Company, supra, page 15,

“First, the defendant must have purposefully

availed itself of the privilege of acting within the

forum state thus invoking the benefits and protections

of its laws. Secondly, the cause of action must arise

from defendant's activities within the forum state

(cases cited). Lastly, the acts of defendant must have

a substantial enough connection with the forum state

to make the exercise of jurisdiction over it reasonable.

(cases cited) ”’

The theory of this court in holding that there is juris-

diction over HMT&S is well expressed in Shepler vs.

Korkut, 33 Mich. App. 411, 190 N.W. 2d 281 (1970).

“Tt is essential in each case that there be some

act by which the defendant purposely avails itself of

the privilege of conducting activities within the forum

52a

Opinion, Court of Common Pleas

state, thus invoking the benefits and protection of its

laws.... Itis sufficient for purposes of due process

that the suit be based on a contract which had a sub-

stantial connection with the state of the forum. A

single transaction may be sufficient to meet the ‘mini-

mum contacts’ test. The state of the forum may have

a manifest interest in providing effective means of

redress for its residents, considering the particular

circumstances of the case and that the crucial wit-

nesses may be its residents .... The trend in

defining due process is toward the court in which

both parties can most conveniently settle their dis-

putes.”’ Gray vs. American Radiator & Standard

Sanitary Corporation, 22 Ill. 2d 432, 176 N.E. 2d

761 (1961).

It has been determined under Pennsylvania law that

a single shipment may be sufficient to sustain jurisdiction.

Acquarium Pharmaceuticals, Inc. vs. Industrial Pressing

and Packaging, Inc., 358 F. Supp. 441 (E.D. Pa. 1973),

where the defendant's principal office was in Wisconsin.

Plaintiff was doing business in Pennsylvania. The de-

fendant, it is claimed was to manufacture and supply

tables for use in a tropical fish business. It is claimed

the tables were defective. The defendant answered that

it maintains no offices in Pennsylvania and had not done

business in the state other than a single shipment of work

5 Gray, supra, states, page 765, ‘‘the trend in defining due

process of law is away from the emphasis on territorial limita-

tions and toward emphasis on providing adequate notice and op-

portunity to be heard; from the court with immediate power

over the defendant, toward the court in which both parties can

most conveniently settle their dispute. ”’

53a

Opinion, Court of Common Pleas

in product inventory to the plaintiff. This case was

decided under the 1972 Long-Arm Statute, supra. The

court held that there was sufficient doing business and it

is no longer required that there be an intent to enter into

a series of acts. The court also answered the contention

that International Shoe, supra, was not met by the evi-

dence. The court responded at 445 by quoting Justice

Black in McGee vs. International Life Insurance Com-

pany, supra, where the Justice stated that over the years

increased expanding state jurisdiction over foreign corpora-

tion and other nonresidents was at 201,

“In part... attributable to the fundamental

transformation of our national economy over the

years. Today many transactions touch two or more

states and may involve parties separated by the full

continent.”

Further, at page 445,

“|. , concept of ‘fair play’ and ‘substantial

justice’ which are of immediate concern to us are not

static and unchangeable concepts to be applied in a

mechanical fashion . . . . They are formulations

which must be defined in light of the constitutional,

economic and social realities of the 1970s and not of

an earlier decade in our history.”’

In Action Industries, Inc. vs. Wiedeman, supra,

the contact was by telephone into the State of Pennsyl-

vania with no actual entry by the foreign defendant. The

suit, against an Ohio resident, was for breach of employ-

ment contract and conversion. The defendant questioned

jurisdiction. He had entered into an employment contract

54a

Opinion, Court of Common Pleas

with the petitioner by which he was to perform services

for the plaintiff in Pennsylvania. He was a president of

a plastic company in Ohio using plaintiff’s materials. He

was to report to the plaintiff the quantity of materials he

had on hand in his Ohio plant. It was alleged that he

misrepresented that which he had on hand in that he had

converted the materials without knowledge to the plaintiff.

The court held Pennsylvania did have jurisdiction for the

defendant's contract was for the purpose of his making a

profit. Further, the court considered, page 803,

“Moreover, nowhere in the record does it appear

that it would be physically or financially awkward

for appellant to defend himself in this state. ‘Mere

inconvenience to the defendant is not sufficient to

deny plaintiff the forum of his choice’.”

HMT&S was aware that it was in custody of products

supplied by a Pennsylvania corporation. Both tankloads

of mc were being shipped pursuant to a contractual agree-

ment. HMT&S should have known that the handling of

the mc could have contractual or tort consequences for the

Pennsylvania corporation which had contracted to supply

it to the plaintiff. As it developed the envisioned contrac-

tual consequences arose and the Pennsylvania corporation

was sued in Pennsylvania. It is fair and reasonable that

HMT&S be called to account for its actions in the same

proceeding in which the Pennsylvania corporation is re-

quired to defend itself. A case factually close is Dornbos

vs. Kroger Company, 9 Mich. App. 515, 157 N.W. 2d 498

(1968). There the plaintiffs, residents of Michigan, sued,

inter alia, Adkins Transfer Company, a corporation doing

business under the laws of the State of Indiana with ter-

minals in Chicago and Nashville. It also sued Tennessee

55a

Opinion, Court of Common Pleas

Cartage Company, a common carrier of that state. Plain-

tiff had received an order from Kroger Company at its

Nashville, Tennessee, offices for a shipment of smoked

fish, f.o.b. Grand Haven. The fish were sealed in vacuum

packages marked ‘‘Keep Under Refrigeration.”’ They were

transferred to Adkins at Chicago which in turn transported

the fish to Nashville, Tennessee, where they were turned

over to Tennessee Cartage Company which delivered the

fish to Krogers. It was alleged that due to negligence in

handling of the products the fish became contaminated and

caused death when eaten. Both Adkins and Tennessee

Cartage moved to quash the service claiming that the Mich-

igan Long-Arm Statute was a denial of due process and an

undue burden on Interstate Commerce. The Michigan

Court of Appeals quoted the lower court, page 501,

“These defendants are in the business of carry-

ing goods in interstate commerce. It is reasonable to

assume that they solicit and hopefully anticipate such

business. They are in the position of being able to

protect themselves from the consequences of their

own derelictions. They understand that the nature of

their business requires them to have the care and cus-

tody of the products and possessions of residents of

other states. It is foreseeable that their negligent

handling of these products and possessions may have

tortuous consequences in other states.”

Further,

“ . , the very nature of the business of these

defendants creates the necessary minimum contacts

with those states which produce the products that

enter interstate commerce.”

56a

Opinion, Court of Common Pleas

Dornbos vs. Kroger Company, supra, was relied upon as

authority in J. Henrijean & Sons vs. M. V. Bulk Enterprise,

311 F. Supp. 417 (W.D. Mich. 1970). Steel had been

shipped from Europe to New Orleans and then by a barge

line which transported it to Chicago and then trucked from

Chicago to Michigan. The barge owner challenged the

jurisdiction. The court held that the allegation that the

barge owner knew the shipment of steel was destined for

ultimate delivery in Michigan and that it rusted on the

barge while in transit from New Orleans to Chicago gave

jurisdiction over the barge owner, being a Delaware corpo-

ration, under the Michigan Long-Arm Statute. In referring

to Dornbos supra, the Court stated, page 421,

‘However, the most persuasive reason for follow-

ing the Dornbos decision is its logic. That court's

opinion exhibits keen awareness of the need to read-

just, ‘traditional notions of fair play and substantial

justice,’ to the realities of modern commercial condi-

tions. In the light of the commercial setting of this

transaction, the nature of the defendant’s overall ac-

tivities, its ability to protect itself from the effects of

its own negligence, and the foreseeable possibility

that its negligence will have tortuous consequences in

other states, it does not seem offensive to the concept

of fair play and justice to permit this plaintiff to bring

this suit in the forum where the consequences of the

defendant's acts occur.”

Finally, consideration should be given to Section 49

of the Restatement of Conflicts 2d dealing with foreign

corporations—doing an act in-state (2),

“A state has power to exercise judicial jurisdic-

tion over a foreign corporation which is done, or has

57a

Opinion, Court of Common Pleas

cause to be done, an act in the state with respect to

any cause of action not in tort arising from the act

unless the nature of the act and the corporation’s re-

lationship to the state makes the exercise of such

jurisdiction unreasonable.”

By Section 51 of the Restatement of Conflicts 2d,

Subsection (2),

“The state has power to exercise judicial juris-

diction over a foreign corporation which has owned,

used or possessed a chattel in the state with respect to

any cause of action arising from the chattel while it

was in the state and was so owned, used or possessed,

unless the nature of the chattel or the corporation’s

relationship to the state makes the exercise of such

jurisdiction unreasonable.”

Section 38 is similar. Both sections are deemed to be

applicable to contract actions. Restatement of Conflicts

Second—Judicial Jurisdiction, page 164.

Defendant’s (HMT&S) cases are distinguishable.

George Transport and Rigging Co. vs. International Pub-

lications Equipment Corp., 425 F. Supp. 1351 (E.D. Pa.

1977) was an action to recover for services of the plain-

tiff, also a Maryland corporation, to transport five ship-

ments of the defendant’s goods from Maryland to various

destinations in Illinois, Indiana and New York. Some of

the shipments were transported over the Pennsylvania

highways. The court held that to permit jurisdiction over

the defendant would offend due process through the Four-

teenth Amendment. Defendant, however, never came into

Pennsylvania itself and had committed no tortuous act

within the Commonwealth. The carriage of the goods was

58a

Opinion, Court of Common Pleas

neither negotiated nor executed in Pennsylvania. There

was never a certificate to do business issued in Pennsyl-

vania or required. In the case at bar, the defendant,

Trimble, did come into Pennsylvania and pick up at least

one-half of the total shipment. The contamination may

have occurred during the loading or cartage in Pennsyl-

vania. At least the defendants, Mercer International and

Interstate Chemical, should have the opportunity to prove

so, if they so desire. In Bork vs. Mills, 458 Pa. 228, 329

A.2d 247 (1974), also relied upon by the defendant,

Trimble, it was held the Long-Arm Statute cannot be used

to gain service upon a foreign corporation on a cause of

action that is unrelated to the defendant’s activities in

Pennsylvania. In the case at bar the cause of action is re-

lated to Trimble’s business in Pennsylvania. Further in

Bork, the court did not consider the effect of 42 Pa. C.S.A.

8309(b) which extends jurisdiction to the fullest extent

allowed under the United States Constitution for service

in Bork was made prior to the effective date of this section.

Finally, in that the Legislature has seen fit to open

the courts of Pennsylvania to non-resident corporations in

the first instant, there is no reason to accord non-resident’s

litigants narrower rights than resident litigants. Washing-

ton vs. Suzuki, Pa. Super. Ct. . 390 A.2d 1339

(1978). Therefore, when Kingsley and Keith, Limited,

come into Mercer County for determination of their rights

against the two Mercer corporations they, as well as the

Mercer corporations, should have the opportunity to have

all the parties’ rights litigated in the same jurisdiction. We

do not conclude that the minimum contacts required under

the United States Constitution’s Fourth Amendment are

lacking. Rather, we feel that Trimble intended to enter

59a

Opinion, Court of Common Pleas

into a business relationship with the defendants to satis-

factorily carry their products to the Canadian destination.

If they failed to do so, they must answer in Pennsylvania

tor their deeds.

Hence, we reaffirm the previous Order of this Court

dismissing the objections to service upon H.M. Trimble &

Sons, Limited.

By the Court,

(s) Albert E. Acker,

J.

Albert E. Acker,

Judge

April 11, 1979

60a

Per Curiam Order, Supreme Court of Pa.

IN THE SUPREME COURT OF PENNSYLVANIA

No. 1 W.D. Appeal Docket 1982

KINGSLEY AND KEITH (CANADA) LIMITED and

KINGSLEY AND KEITH CHEMICAL CORPORATION

Vv.

MERCER INieRNATIONAL CORPORATION and IN-

TERSTATE CHEMICAL CORPORATION and H. M.

TRIMBLE & SONS, LIMITED

Appeal of H. M. Trimble & Sons, Limited

Appeal from Order of Superior Court entered June 26,

1981, at No. 116 April Term 1979, 291 Pa. Super. 96,

435 A.2d 585 (1981).

Argued: September 23, 1982

ORDER

PER CURIAM, Filed: February 9, 1983

The Court being equally divided, the Order of the

Superior Court is affirmed.

6la

Per Curiam Order, Supreme Court of Pa.

Mr. Chief Justice Roberts files an Opinion in Sup-

port of Affirmance in which Mr. Justice Larsen and Mr.

Justice Flaherty join.

Mr. Justice Nix files an Opinion in Support of Re-

versal in which Mr. Justice McDermott and Mr. Justice

Hutchinson join.

Former Chief Justice O’Brien did not participate in

the decision of this case,

62a

Denial of Reargument

THE SUPREME COURT OF PENNSYLVANIA

Western District

Carl Rice, Esq. 801 City-County Building

Prothonotary Pittsburgh, Pa, 15219

Irma T, Gardner

Deputy Prothonotary

March 31, 1983

P, Raymond Bartholomew, Esquire

Cusick, Madden, Joyce and McKay

First Federal Building

Sharon, Pennsylvania 16146

In Re: Kingsley and Keith (Canada) Limited, et al. v.

Mercer International Corporation, et al.

Appeal of H. M. Trimble & Sons, Limited

No. 1 W.D. Appeal Docket 1982

Dear Mr. Bartholomew:

The Court has entered the following Order on your

Application for Reargument filed in the above matter:

“March 28, 1983

Application denied.

Mr. Justice McDermott did not participate in

this determination.

Per Curiam”

Very truly yours,

(s) C. Rice

Carl Rice, Esquire

OO

VV —— eo

63a

Denial of Reargument

CR/ss

cc: Thomas T. Frampton, Esquire

M.L. McBride, Jr., Esquire

Honorable Albert E. Acker